Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative. The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.… More
Category Archives: Air
Earlier this week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement. I don’t doubt that the CLC analysis is right. If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.… More
On Friday, Judge John Woodcock held that an ordinance enacted by the City of South Portland, Maine, that prohibited loading crude oil from a pipeline terminating in South Portland onto tankers in South Portland Harbor, in order to prevent certain adverse local impacts, did not violate the Constitution’s Commerce Clause. It’s potentially a very important decision in this area. Congratulations to my partner Jonathan Ettinger and our entire team that worked on the case. … More
EPA has finally released its proposed replacement for the Clean Power Plan, dubbed the Affordable Clean Energy Rule. More affordable than clean, I’d say.
What’s really telling is that EPA’s own analysis shows that the CPP would have delivered significantly more benefits than ACE. And that goes for both direct benefits in GHG emissions reductions and indirect benefits related to reductions in traditional criteria pollutants.… More
On Friday, the D.C. Circuit Court of Appeals vacated EPA’s “Delay Rule”, which postponed compliance with EPA regulations governing preparation of Risk Management Plans under the Clean Air Act. The decision comes only one day after another court decision vacating the “Suspension Rule” which postponed the Waters of the United States Rule.
Memo to EPA General Counsel’s office. If something labeled “Delay Rule” or “Suspension Rule” comes across your desk,… More
So the Trump administration has formally proposed to roll back CAFE standards for model years beginning in 2021. And California has announced its intention to start separately enforcing its own standards if the federal standards are weakened. Trying to sort it all out, I was somehow reminded of the famous Winston Churchill statement:
Many forms of Government have been tried, and will be tried in this world of sin and woe.… More
On Thursday, Judge John Keenan dismissed New York City’s climate damages law suit against five oil majors. The basis for the decision was the same as in last month’s decision dismissing similar claims in California:
- Because climate change is an interstate and international problem, such claims cannot be resolved under state law; if such claims are valid, they must be brought under federal common law.…
Earlier this month, the D.C. Circuit Court of Appeals ruled on challenges to EPA’s National Emission Standards for Hazardous Air Pollutants from the brick and clay industries. The Court granted the environmentalists’ petitions almost in their entirety and denied the industry petitions in their entirety.
The decision is not really surprising, because EPA had failed to justify a number of the decisions that it made. … More
Late last month, when I reported on the dismissal of the California climate change public nuisance litigation, I stated boldly that we should not expect advocates to stop trying. I did not really think I was going out on a limb with that prediction, but I also did not know that I’d be proved correct so quickly. Less than a week later, on July 2, the State of Rhode Island brought its own public nuisance claim.… More
As a follow-up to my June 27 post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. … More
On Monday, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies. The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.
Why did he dismiss the case? Simple. The courts are not the right forum in which to address the problems of climate change. … More
EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change
Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”
I’ve done a fair number of FOIA requests in my time. … More
There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.
Just a few weeks ago, Federal Judge William Alsup ruled that claims brought by San Francisco and Oakland against certain large oil companies belonged in federal court, because they raise issues of federal common law. Last week, in a similar law suit asserting similar claims, Judge Vince Chhabria remanded the case to state court. Why? Because there is no federal common law applicable to such climate-related claims. … More
Governor Baker has sent some mixed messages to the environmental community in his first term. After promising during the campaign to increase environmental spending to 1% of the state budget, he’s made essentially no progress whatsoever. More recently, the administration’s selection of Northern Pass to provide renewable energy under the so-called “83D” procurement was panned by pretty much everyone who is neither a member of the administration nor a resident of the Sovereign Nation of Eversource.… More
Today, the D.C. Circuit Court of Appeals rejected environmental and state/industry challenges to EPA’s Regional Haze Rule. In essence, the ruling confirms that EPA was reasonable in determining that compliance with its Cross-State Air Pollution Rule was sufficiently stringent to constitute “better-than BART” and thus could excuse states from complying with Best Available Retrofit Requirements where they are subject to CSAPR.
Boy, that was a mouthful.… More
Yesterday, the 9th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change had violated their constitutional rights. It appears that the plaintiffs will get an opportunity to prove their claims.
It’s important to remember that this opinion is not about the merits. … More
Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court. However, I’m not sure that this is a victory for the oil companies. This might be more of a “be careful what you wish for” scenario.
As I’ve noted previously, the fight over the Trump Administration’s effort to change course on a number of Obama environmental initiatives is going to focus in significant part on FCC v. Fox Television Stations, in which the Supreme Court stated that agencies are free to reconsider policies so long as:
the new policy is permissible under the statute, there are good reasons for it,… More
Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards. My primary take-away? The structure of the Clean Air Act is so dense and so complicated that it gives me a headache, and I do like to think I’m something of an expert. Those of us who believe in government regulation need to be honest and admit that there’s a reason why some people become Libertarians. … More
Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut. EPA did not dispute liability; it had clearly missed the original statutory deadline. The case was all about the remedy. EPA asked to be given until December 31,… More
Some Extreme Climate Events Would Not Have Happened But For Climate Change: Lawyers Are Paying Attention
Today’s ClimateWire (subscription required) contained a long summary of evidence that scientists are increasingly able to demonstrate that climate change is what we lawyers would call the “but for” cause of extreme weather events. One of the most interesting is the recent paper “Explaining Extreme Weather Events of 2016: From a Climate Perspective,” from the Bulletin of the American Meteorological Society. It looked at a number of extreme events and found – for the first time –
that some extreme events were not possible in a preindustrial climate. … More
While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive. There were two developments worth noting this month.
First, Bloomberg Markets reported that BlackRock, which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures. … More
The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report. Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More
I’ve noted numerous times that the NSR program is incomprehensible gibberish. These are scientific and objective comments. The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended up writing the opinion of the 6th Circuit Court of Appeals, allowing EPA enforcement claims against DTE Energy to continue.
The question in DTE Energy is whether EPA can second-guess a generator’s pre-construction prediction of future actual emissions and bring a claim for an NSR violation – even where post-project actual emissions did not show a significant net increase in emissions. … More
The Houston Chronicle reported yesterday that electric generation capacity from wind now exceeds that of coal in Texas. That’s not even counting Vistra’s recent announcement that it intends to close three coal-fired plants.
To those who might point out that wind is intermittent and it thus has lower capacity factors, the same Chronicle story reports at least one expert prediction that wind generation will exceed that of coal by 2019.… More
Coming Soon to a Northeast or Mid-Atlantic State Near You: Regulations on Carbon Emissions From Transportation
Yesterday, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation. The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”
Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this: RGGI for transportation.… More
Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment. It makes grim reading – or perhaps more accurately, grim reaper – reading. Here’s what we might call the executive summary of the Executive Summary. First, the bottom line:
This assessment concludes, based on extensive evidence, that it is extremely likely that human activities, especially emissions of greenhouse gases,… More
As regular readers know, the tension between guidance and regulation is one of my favorite topics. My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued, it is treated by those implementing it in the agency street-level bureaucracy as though it were a rule. Nonetheless, guidance is sometimes appropriate. The recent decision in Sierra Club v.… More
Last week, the Lancet Commission on pollution and public health (free registration required) released a study on the annual costs of pollution. There’s bound to be argument about the specifics, but it’s difficult to argue with the conclusion that those costs are really, really, big. The study estimates the annual global welfare loss due to pollution at $4 trillion – $6 trillion. The Lancet says that this is more than 6% of global economic output. … More
Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands. If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.
The case is pretty simple and the outcome should not be a surprise. … More
On Monday, EnergyWire (subscription required) reported that New York City Mayor Bill de Blasio has unveiled a plan to cap fossil fuel use in buildings in New York City. (I haven’t seen the specific plan, but it is referenced in City’s overall plan, “1.5°C: Aligning New York City with the Paris Climate Agreement,” that the City just released.) The building plan is based on data gathered as a result of local ordinances requiring buildings with more than 25,000 square feet to report energy and water use. … More
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production. The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More
China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.
It’s pretty well known that China is not the world’s most transparent government. Thus, I won’t fully believe until I see it. On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More
Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur dioxide NAAQS under the Clean Air Act.
I would have thought that entry of the settlement would be fairly straightforward. EPA misses deadlines with some regularity. Persons sue over such failures with some regularity. … More
Earlier this month, State Street Global Advisors joined the chorus of money managers urging corporate boards, particularly those in “high-impact sectors” – meaning “oil and gas, utilities and mining” – to do a better job reporting risks related to climate change. SSGA’s recent “Perspective on Effective Climate Change Disclosure” is a serious document. To put it in formal technical jargon, SSGA whacks the heck out of most companies in high-impact sectors,… More
Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast Market Pipelines Project. If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.
(Full disclosure – Foley Hoag represents NextEra,… More
Earlier this week, the D.C. Circuit Court of Appeals struck down part of an EPA rule promulgated pursuant to the Montreal Protocol. The section that was struck down would have required manufacturers of HFC-134a, which is not ozone-depleting and which had previously been determined by EPA to be an acceptable replacement for ozone-depleting compounds, to find other replacements, because EPA determined in 2015 that HFC-134a did not “reduce overall risks to human health and the environment.” Why? … More
Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here. So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.
(Renewed caveat: This firm represents,… More
Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy. Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”
(Caveat: This firm represents,… More
Yesterday, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA. Rather than setting specific MACT standards for these compounds, EPA regulated them through “surrogates,” commonly particulate matter. The Sierra Club and others argued that EPA did not adequately justify the use of surrogates.
The three-part test for the adequacy of a surrogate is clear and worth repeating:
(1) the relevant hazardous air pollutant is invariably present in the proposed surrogate;… More
Earlier this week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017. The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.… More
EPA Does Not Have a Non-Discretionary Duty to Assess the Impact of Clean Air Regulations on Employment
Yesterday, the Court of Appeals for the 4th Circuit reversed a District Court decision and rejected the lawsuit by Murray Energy which argued that EPA had a non-discretionary duty under § 321(a) of the Clean Air Act to:
conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans,… More
In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan. In essence, it’s a gradually increasing carbon tax. The plan would be revenue neutral, with the proceeds being returned to taxpayers. Thus, the name. I loved the idea and I still love it. I particularly love that the tax starts at $40/ton – that’s a serious number.… More
Climate Change Skeptics Occasionally Become Believers, But Believers Don’t Become Skeptics. Why Is That?
On Friday, Greenwire published a very interesting interview with Jerry Taylor, every climate advocate’s favorite Libertarian. The interview chronicles Taylor’s journey from climate skeptic to climate believer. For those of you who don’t know his story, Taylor left the Cato Institute to found the Niskanen Center, where he works on promoting Libertarian solutions to climate change.
I’ve seen stories about Taylor before and Greenwire’s piece is an excellent interview (and thanks to Greenwire for taking this out from behind its pay wall and making it available for free!). … More
In March, I noted BlackRock’s increasing concern over climate. One element of its statement was “potential support for shareholder resolutions on climate risk”, where “management’s response to our prior engagement has been inadequate. Turns out that they meant it.
Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate change. Not surprisingly, the government sought interlocutory appeal. On Monday, Magistrate Judge Thomas Coffin issued a Finding and Recommendation that the request for interlocutory appeal be denied. … More
Last year, the 5th Circuit Court of Appeals vacated the decision by District Judge David Hittner not to impose any penalties on ExxonMobil for violations alleged in a Clean Air Act citizens’ suit concerning ExxonMobil’s Baytown facility. At the time, I asserted that the case was largely a win for ExxonMobil.
Last week, Judge Hittner, in an opinion which was admirably scrupulous in not trying to dodge the 5th Circuit remand,… More
Last week, the 6th Circuit Court of Appeals ruled that AEP, which entered into a consent decree requiring it to install certain pollution controls at its Rockport 1 and 2 power plants, could not force the owner of those plants to pay to install the controls. The case involved the interpretation of specific contractual language under New York law, but it still has lessons for power plant owners and operators everywhere.… More
Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down
On Tuesday, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations. The Court found that EPA had no statutory authority to exempt AFOs from the reporting regulations.
The decision is also important because it is another in a recent line of cases regarding the extent of agency authority to interpret statutes. The issue was whether EPA had authority to exempt smaller AFOs from reporting requirements,… More
Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate. I think that the result is both correct and unsurprising.
However, one part of the opinion – a recitation of black-letter law – caught my eye. In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.” No surprise there. … More
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
According to Bloomberg BNA (subscription required), last week, for the first time ever, more than 50% of the load in the Electric Reliability Council of Texas service area was supplied by wind power. This is the state that consumes more coal than any other. Installed wind capacity is now more than 18,000 megawatts and is projected to be as high as 28,000 MW by 2020.… More
On Wednesday, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020. EPA admitted that it missed statutory deadlines to do so; the only argument was over how much time EPA should have. EPA asked for 4 ½ years, while the plaintiffs suggested two. Judge Cooper pretty much split the difference.
Why is the case important? … More
The conservative cases in support of Chevron deference keep arriving. This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo Generating Station, which is apparently the largest coal-fired power plant in the western United States. Environmentalists challenged the FIP on a number of grounds, including EPA’s decision to grant Navajo Generating emission credits for some early NOx reductions as well as the amount of time the FIP gave the facility to attain the required reductions.… More
This week, the National Academy of Sciences Committee tasked with reviewing the Climate Science Special Report, issued by the Obama administration, basically blessed it. They had some comments, but I’ve been through the NAS review process; they always have comments. Their top line?
The Committee commends the CSSR authors for producing an impressive, timely, and generally well-written draft report and was impressed with the breadth,… More
BlackRock, which manages more than $5 trillion in assets, has released a statement on how it “engages with climate risk.” The statement has three main elements.
- Support for the Financial Stability Board’s Task Force on Climate-Related Disclosures
- Engagement with companies over assessment on climate risks
- An indication of potential support for shareholder resolutions on climate risk,…
In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood. They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.
The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage could play a role in mitigating the need for new generation sources to meet peak demand.… More
Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends (note the absence of the “T” word in that title!). It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.
Here are the highlights:
- A gradually increasing carbon tax,…
Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility. As I noted when Judge Sippel denied cross-motions for summary judgment, the result is not really a surprise.
Moreover, Judge Sippel’s decision is not based on any extreme reading of the law. … More
The NSR Regulations Still Make No Sense: The 6th Circuit Reverses the DTE Decision Based on a 1-Judge Minority Opinion
Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations. According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.… More
This week, the Department of Energy finalized regulations to increase energy efficiency for central air conditioners and heat pumps. The regulations apply to products manufactured or imported into the United States beginning in 2023. DOE estimates that, over the following 30 years, the regulations will reduce GHG emissions by 188.3 million metric tons, and will also result in similarly substantial reductions in emissions of conventional pollutants.… More
Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.
As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain. However, that does not mean that MassDEP can simply take the easy way out. After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More
As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations.… More
When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given. To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.
I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts. … More
- It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules. I don’t see Clean Air Act amendments happening. Significant amendments might be possible to the Endangered Species Act and Superfund.…
Given how easy it can be to get discouraged about progress in addressing climate change, I think it’s helpful periodically to remember how much progress the U.S. has made in fighting air pollution. It thus seemed useful to note this story about current conditions in New Delhi, where PM levels are so high that one million (!) students are being kept home from school.
It’s also helpful to remember the tension inherent in the climate change fight. … More
Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978. Why? The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.
The real question is whether this is good news or bad news.… More
Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it:
Conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision [sic] of the Clean Air Act….
I’ve noted in the past that good lawyering matters. … More
Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.” The EIA gave three reasons for the drop in CO2 emissions.
- Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.…
As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy. Last week, news arrived of more innovation in Massachusetts – this time on the legal front. CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change.
On Monday, the TVA announced that Watts Bar Unit 2 had successfully completed what is known as its final power ascension test. It is now producing 1,150 MW of power in pre-commercial operation. Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage. It’s been 20 years since the last nuclear facility came online in the United States.… More
When RGGI was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy. Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work. The RGGI states were to serve as a model,… More
EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited
On Monday, EPA promulgated amendments to its “Exceptional Events” Rule. The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS. EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS. The change is important for two reasons. … More
Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.” EO 569 will advance climate policy in Massachusetts in a number of important ways. It also leaves much to be accomplished by MassDEP. Here are the highlights:
- EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.…
DOE and DOI Release the New National Offshore Wind Strategy: Perhaps Prosperity Is Finally Just Around the Corner
Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategy. It’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050. The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.
On the plus side:
- The combination of fossil retirements and demand growth provide significant incentive for offshore wind development.…
A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.
Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead. In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants from such redefinition of the source. … More
Although citizen groups have suffered some defeats in Clean Air Act cases in the NSR/PSD context recently, a decision last week in a different kind of CAA case is a reminder of just how powerful a weapon citizen suits can be, and just how difficult they can be to defend, even when the operator appears to have a good working relationship with the regulator. In NRDC v.… More
On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. The industry challenges were a complete washout. The environmental petitioners won one significant victory and a number of smaller ones.
The environmental petitioners’ one significant victory is important. EPA included within relevant subcategories any source that burns a fuel containing at least 10% of the “subcategory-defining fuel.” However, for defining MACT, EPA included only those sources that burn fuel containing at 90% of the subcategory-defining fuel for existing sources,… More
Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The opinion is a thorough rejection of EPA’s decision. Although this was only a stay order, I would rate EPA’s likelihood of ultimately prevailing on the merits as approximately zero. There are a number of significant take-aways from the decision:
- EPA’s assessment of regional haze SIPs is not generally of “nationwide scope or effect” and therefore will be subject to review in the court of appeals responsible for the state at issue,…
An article published Friday in Science reports that the Antarctic ozone hole is healing. As the article notes, there was some previous evidence about global improvement in stratospheric ozone levels, but this is the first to document improvement in Antarctica.
Aside from the fact that good news is always welcome, it’s also a useful reminder that environmental regulation can work. In the developed world,… More
The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights:
- Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.
- The number of “extreme precipitation” events has been increasing and that increase will continue.…
Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.
If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you. The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:
no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More
5th Circuit Vacates Verdict for ExxonMobil in CAA Citizen Suit: Still Not Much of a Win for the Plaintiffs
Last Friday, the 5th Circuit Court of Appeals vacated a District Court decision which had refused to impose penalties on ExxonMobil for various violations of the Clean Air Act at ExxonMobil’s Baytown refinery. While the trade press has focused on the remand, I think that this is largely a win for ExxonMobil and, on balance, helpful to the regulated community. Here’s why:
- The Court agreed that “deviation reports”,…
The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!
On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act by failing
To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year,… More
Dylan Thomas said “Do not go gentle into that good night.” Obama’s EPA is taking that advice to heart, pushing forward aggressively on its climate change agenda, even as January 2017 approaches. On Thursday, EPA issued its final rule promulgating New Source Performance Standards for methane emissions from oil and gas facilities. The lengthy and complex rule is too long to summarize here, but you can find the Cliff Notes version in EPA’s fact sheet.… More
Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards are “appropriate and necessary.” I don’t have much to add to our post at the time of the proposed Supplemental Finding. In short, the Supplemental Finding isn’t going to change anyone’s mind, but it should be sufficient to withstand judicial review as long as the courts still believe in Chevron deference.… More
This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21. MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”
The NPRM addresses this criterion,… More
A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as “technical corrections,” but there is one important substantive change. EPA has deleted the affirmative defense for violations caused by equipment malfunctions.
The change follows EPA’s 2015 SIP call requiring states to delete affirmative defenses for violations related to startup, shutdown, or malfunction events. … More
Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards attaining EPA’s regional haze goals than would application of best available retrofit technologies to those sources that would otherwise be subject to BART. On Monday, the 8th Circuit agreed that EPA’s decision that the Transport Rule is better than BART was not arbitrary or capricious.… More
The Statute of Limitations Narrows a Bit More on PSD Violations: Sierra Club Suffers a Self-Inflicted Wound
The law is full of fine distinctions. Today’s example? A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s Muskogee plant because the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction.… More
Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power plant. True, the court denied EPA’s motions for summary judgment. However, it also denied Ameren’s motions and on balance probably left EPA feeling better than Ameren about its prospects at trial. … More
Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a number of interesting elements and is well worth a read, but it’s most notable for its treatment of the deference issue.
We all know that courts defer to reasonable agency decision-making. … More
The sixth installment of our Paris climate change negotiations tracker is now available. It includes not just a complete look back at the results from Paris, but also a quick postscript on the impact of the Clean Power Plan stay order from the Supreme Court on the current prospects for successful implementation of the Paris Agreement.
Click here to download the report:
Yesterday, the Supreme Court stayed EPA’s Clean Power Plan rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.
Last week, we wrote about an audit that MassDEP is conducting of previously closed sites to look for high concentrations of TCE in soils and groundwater. The intent of the audit is to address potential vapor intrusion. The EPA has been paying attention to VI as well, and last Wednesday proposed to add vapor intrusion as a factor to be considered when evaluating the hazards posted by a contaminated site.… More
Yesterday, the White House released a fact sheet describing its efforts to create a “21st Century Clean Transportation System”. There’s a lot of interesting material in the plan, but all the headlines have been on the President’s inclusion of a $10/barrel tax on oil in his FY2017 budget as a means of paying for the various improvements contained in the plan.
The fact sheet doesn’t use the words “carbon tax” and it emphasizes the purposes for which the tax revenue will be used,… More
Prognosticating the Ozone Standard Litigation: EPA to Win, Environmental Petitioners to Place, Murray Energy to Show
Earlier this week, the “Public Health and Environmental Petitioners” challenging EPA’s decision not to reduce the ozone standard below 0.070 ppm filed their “Non-Binding Statement of Issues.” My crystal ball still tells me that the most likely outcome is that the Court of Appeals upholds EPA’s 0.070 ppm standard.
Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020. The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”. The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.
While that’s the main take-away, it really is a useful report,… More
Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the Court simply stated that “Petitioners have not satisfied the stringent requirements for a stay pending court review.”
The Court did expedite briefing,… More
Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose Economy-Wide GHG Controls? Count Me Skeptical
In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach. And what, you may ask, is § 115? Even the most dedicated “airhead” has probably never worked with it.… More
When EPA assesses the costs and benefits of environmental regulations, it typically looks at direct health impacts resulting from exposure to pollutants. According to a recent National Bureau of Economic Research working paper by Evan Herrnstadt and Erich Muehlegger, EPA may need to start assessing the costs of another set of pollution impacts – violent crime. In Air Pollution and Criminal Activity: Evidence From Chicago Microdata,… More
There has been a lot of scholarly discussion in recent years about the importance of putting a price on natural resources. The pricing issue has been particularly in the limelight in connection with the drought in the western United States. Indeed, it seems fairly self-evident that, if we give away a scarce resource, people will consume too much of it.
I suppose, then, that we should not be surprised that we have already been one-upped on this issue by the Chinese. … More
Yesterday, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definite trend towards refusing to vacate complex EPA rules. Where the rule is sufficiently complicated and EPA can tell any kind of credible story that maintaining a slightly tarnished rule is better than no rule at all,… More
So COP21 resulted in an agreement. What’s a poor in-the-trenches lawyer to make of it? I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected. For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post. As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:
It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More
I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review. I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible). The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.… More
I have never understood why 43 states – including the great Commonwealth of Massachusetts – have independent elected attorneys general. I’m sure my new colleague, former Massachusetts Attorney General Martha Coakley, would disagree with me, but I just don’t think that the value of having an AG independent of the Governor is worth the lack of policy consistency. Exhibit A to my argument is the current dispute in Colorado between Governor John Hickenlooper and Attorney General Cynthia Coffman concerning EPA’s Clean Power Plan. … More
Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units. The Supplemental Finding was necessary after the Supreme Court ruled earlier this year that EPA’s original decision to regulate HAP emissions from EGUs was flawed because EPA did not consider costs in making the decision. Is the Supplemental Finding enough to ensure that the Mercury and Air Toxics rule is upheld this time around? … More
Last week, a trial judge in Washington State, in Foster v. Washington Department of Ecology, ruled that the Public Trust Doctrine requires the State of Washington to address climate change more aggressively. Greenwire’s headline for its story on the decision was “Kids declare victory in Wash. warming lawsuit.” I’m here to throw a little cold water on all the excitement. Why?
If you want to know what how a rational optimist defines success for COP21, take a look at Rob Stavins’s latest post. Here’s his “Paris Scorecard” for what success will look like:
- Include approximately 90% of global emissions in the set of INDCs that are submitted and part of the Paris Agreement (compared with 14% in the current commitment period of the Kyoto Protocol).…
Does the Impact of Climate Change on Financial Markets Have Anything In Common with Same-Sex Marriage?
A few months ago, I asked whether climate change nuisance and public trust litigation might have something in common with litigation challenging bans on same-sex marriage. The idea was that both types of litigation seemed hopeless at the start and received very frosty receptions from the courts. However, in the case of same-sex marriage, plaintiffs kept plugging away and, much sooner than most people expected, a tipping point was reached. … More
This week, the 6th Circuit Court of Appeals held, in Merrick v. Diageo Americas Supply, that the Clean Air Act does not preempt source state common law remedies seeking to control air pollution – even where the defendant is in compliance with CAA requirements. The 6th Circuit joins the 3rd Circuit, which reached the same conclusion in Bell v. Cheswick in 2013. … More
So the Clean Power Plan has been published in the Federal Register. For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP.
Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue. … More
The fourth installment of our Paris climate change negotiations tracker is available.
Some progress seems to be occurring, but it’s certainly not obvious that COP21 will result in an agreement sufficient to ensure that it will result in meeting a “below 2°C” objective.
Click here to download the report:
On Thursday, EPA finally released its final rule revising the ozone NAAQS to 70 ppb. I do not spend much time peering into a crystal ball, but I will go out on a limb and say that the industry challenges to the rule will fail. Just ain’t gonna happen.
The environmental group challenges pose a more interesting question. There’s a fair bit of evidence of health impacts below 70 ppb,… More
Record Review Means That EPA Must Refer To the Record: The Third Circuit Remands EPA’s Approval of the Pennsylvania Regional Haze SIP
On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. The decision is a must-read for practitioners. It decides some important issues and provides important reminders for EPA and the states on how to build a record and how to justify decisions – or not! – based on that record.
Although seen as a defeat for Pennsylvania and the large sources subject to the regional haze rule,… More
Last Wednesday, the D.C. Circuit Court of Appeals remanded EPA’s rule exempting stationary engines that operate up to 50 hours per year to supply non-emergency service to power providers from the EPA NESHAP for reciprocating internal combustion engines. Why is that news?
Because, once more, a court has acceded to EPA’s request that it remand without vacatur, leaving the rule in place. We’re now seeing something of a trend towards remand without vacatur. … More
Governor Baker recently submitted Senate Bill No. 1965 to the Legislature. It calls for utilities to solicit long-term purchases of renewable energy. We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period. Two rationales are often provided to justify the large purchase of Canadian hydropower. First, cheap hydropower will ameliorate the high cost of electricity. Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More
Yesterday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register. The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”
Really? Tell me something I did not know.
I’m sorry. The CPP is a far-ranging rule. … More
Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this month, EPA has to be reconsidering. I assume that EPA won’t give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point.… More
When the Regional Greenhouse Gas Initiative was first implemented, there were questions regarding how much of an impact it would actually have on GHG emissions. I recall Ian Bowles, then Secretary of Environmental Affairs in Massachusetts, saying that, while reductions would happen, the main purpose was to provide a template and to demonstrate that an emissions trading program could be implemented successfully.
Those doubts were only heightened when a combination of cheap gas and the Great Recession were understood to have caused low allowance prices in the RGGI auction. … More
Having gotten the Clean Power Plan out the door, EPA has moved on to another target of President Obama’s Climate Action Plan: landfill methane emissions. Late last week, EPA proposed both new emission guidelines for existing landfills and a supplemental proposal to modify the new source performance standards for new or modified landfills. The landfill rule is a somewhat easier lift than the Clean Power Plan.… More
So the Clean Power Plan is out. It’s difficult to be pithy about such a big, sprawling, mess, other than to say that it’s probably about as good as it could be, though that may not be enough. Here are a few items that have caught my eye so far:
- Although the initial deadlines have been eased, the goal of 32% reduction over 2005 emissions by 2030 is a slight increase over the 30% in the draft.…
The Clean Air Act’s good neighbor provision prohibits upwind states from emitting air pollutants in amounts that will “contribute significantly to nonattainment” of a national ambient air quality standard in a downwind state. On Wednesday, the D.C. Circuit Court of Appeals held that, while upwind states have to be good neighbors, EPA cannot force them to be extraordinarily super-special neighbors. Just good enough will have to do.… More
On Tuesday, the D.C. Circuit Court of Appeals affirmed EPA’s update of its hexavalent chromium MACT rule. Suffice it to say that this was a little easier than review of the power plant MACT rule.
The Court rejected both industry and environmental group challenges, in what was largely a straightforward application of Chevron. The opinion is nonetheless useful in laying out what EPA must have in the record to justify ratcheting down MACT standards.… More
On Friday, Judge Claire Eagan dismissed Oklahoma’s latest challenge to EPA’s Clean Power Plan. Yes, that plan. The one that hasn’t been promulgated yet.
Following rejection by the D.C. Circuit Court of Appeals of a prior law suit, Oklahoma tried again, this time on what it presumably hoped would be more friendly ground, the Northern District of Oklahoma. Not so much.… More
The third installment of our Paris climate change negotiations tracker is available. This may sound like a broken record, but there was not a lot of progress made in the Bonn talks earlier this month and it’s looking more and more as though it’s going to be difficult to reach a major substantive agreement in Paris.
The connection between energy use and emissions of air pollutants, including GHGs, is uncontroversial. It is also widely, if not universally, accepted that there is a lot of low-hanging fruit in energy efficiency. I agree completely with both propositions.
The short answer is, yes, though the majority is more wrong.
In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word “appropriate” – on which the entire 44 pages of the majority, concurring, and dissenting opinions focus – is “capacious”. I agree. … More
Recent events have me pondering this question.
Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate change. In the Washington case, in response to a complaint from eight teenagers, a trial court judge has ordered the Washington Department of Ecology to reconsider a petition filed by the teenagers requesting reductions in GHG emissions. … More
As the date for the Paris climate talks moves closer, we have our second installment of our climate negotiations tracker. This episode discusses the concept of “dynamism” – being able to adjust over time just how ambitious the mitigation goals will be; the mechanism for assessing the Nationally Determined Contributions, or NDCs; the role of non-state actors; and how to differentiate among developed and developing countries.… More
Easy way to tell when you’ve lost your appeal? When a pithy judge starts making fun of you in the first sentence of the opinion. In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals today rejected all of the pre-promulgation challenges to EPA’s Clean Power Plan. Judge Kavanaugh began by noting that:
Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants.… More
Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units. It wasn’t actually a difficult case, but it does provide a lesson for Congress. When the technical nature of EPA’s decisions was layered on top of the fundamental deference given EPA’s interpretation of the statute under Chevron,… More
Last week, EPA finally responded to the Sierra Club’s petition requesting that it eliminate exemptions and defenses for excess emissions resulting from startup, shutdown, or malfunction events. EPA concluded that it needed to issue a SIP call to 36 states requesting that they revise their SIPs to conform to EPA’s current understanding regarding how SSM events should be handled.
The SIP call will require affected states to eliminate three separate types of protection currently given to generators in connection with excess emissions during SSM events:
- Automatic exemptions
- “Director’s discretion”…
The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule. The Court found that EPA was not arbitrary or capricious in rejecting Kansas’s SIP, noting that:
The discussion of interstate transport in Kansas’s SIP was only one page long and failed to provide any analysis at all of the downwind effect of its in-state emissions.… More
Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP
Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley. While the trade press has been focusing on the partial reversal, I think that EPA won much more than it lost.
What did it lose? California’s plans for complying with the ozone and PM 2.5 NAAQS relied in part on emissions reductions to be attained as a result of California’s authority under the CAA to impose more stringent mobile source emissions standards than are applicable nationally. … More
Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, the Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order requiring MassDEP to:
promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources that emit greenhouse gas emissions.
As we approach the start of the UN Framework Convention on Climate Change Conference of the Parties 21, slated to open in Paris on November 30, 2015, Foley Hoag begins a series of documents tracking the negotiations. The first installment discusses the range of Intended National Determined Contributions of four players in the talks: the United States, the EU, Russia,… More
The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response. It’s an important decision that could have lessons for EPA and the regulated community across a wide range of circumstances, including eventual challenges to EPA’s proposed GHG rule.
EPA said that the rule was necessary to allow demand response programs to succeed while maintaining grid reliability. … More
Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia. The motion was unopposed.
Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him,… More
What are the politics of climate change? A new poll done by Stanford University and Resources for the Future suggests that the public may be more ready to regulate carbon than has previously been thought. When asked if “the federal government should or should not require companies to pay a tax to the government for every ton of greenhouse gases the companies put out,” 61% of respondents said yes. … More
Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations. It took less than a week before it became clear that EO 562 has real teeth. Yesterday, MassDEP sent out a one-paragraph notice delaying hearings on its proposed Clean Energy Standard, citing EO 562 as the reason:
MassDEP is postponing the hearings and comment period on the proposed Clean Energy Standard rule until it has completed the reviews required under the recent Executive Order 562.… More
I have long thought that the best argument for market-based approaches to climate change mitigation was the clunkiness of the alternative. However much time EPA has spent trying to make the GHG regulations efficient, no one can say that EPA’s proposal is elegant.
Although it is at best a dim glimmer of hope on the horizon, it was nonetheless comforting to see Jerry Taylor of the Libertarian Niskanen Center make “The Conservative Case for a Carbon Tax.” While I don’t agree with every aspect of his proposal,… More
As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them. As the Court stated in EME Homer Generating:
with time travel yet to be discovered,… More
In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.” A modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good intentions. Nowhere is that more apparent than with citizen suit provisions, as was demonstrated in the decision earlier this week in Nucor Steel-Arkansas v.… More
In November, the North American Electric Reliability Corporation provided its “Initial Reliability Review” of EPA’s Clean Power Plan. NERC raised a number of concerns about the impact of the CPP on reliability.
On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and combined with a typical willingness to spend money we didn’t have.
As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first time turned on a light bulb for me. … More
Last week, the Massachusetts Department of Environmental Protection proposed to implement a “Clean Energy Standard,” which would require that, by 2020, at least 45% of electricity sales come from sources which have “clean energy attributes.” The required percentage would increase to 49% by 2024, and MassDEP would then have to define percentages going forward at least 10 years in advance, with the caveat that the required percentage can never decrease.… More
As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants. EPA expects to issue the rules in the Summer of 2015. Only time will tell whether the agency makes the new date.
On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought $642,697,500) against ExxonMobil in a Clean Air Act citizens’ suit brought by Environment Texas and the Sierra Club concerning the ExxonMobil facility in Baytown, Texas. The plaintiffs lost even though Judge Hittner did find a number of violations of the CAA. … More
There has already been significant discussion of the economic impacts of climate change. Damage from catastrophic events, the cost to build adaptation measures such as sea walls; these have all been examined. Now, a National Bureau of Economic Research Working Paper suggests a much more direct measure. Apparently, we’re just not as productive as the planet warms.
Cole Porter knew what he was talking about.
On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.
WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”
What was the basis for the alleged nondiscretionary duty? … More
Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – except that the agency is still hedging its bets. The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of 0.060 to 0.070 ppm. EPA has narrowed the range slightly, proposing a revised NAAQS of from 0.065 to 0.070 ppm, but still has not yet picked a number.… More
Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050. And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions. NRG’s statement indicated that it had already reduced emissions by 40% since 2005. By my math, that means that the 2030 and 2050 reductions would be 70% and 94%, respectively, below 2005 emissions.
If NRG can do it,… More
Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require. As with any MEPA (or NEPA) analysis, it has two parts: identification of impacts and discussion of mitigation measures.… More
Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?
Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment. In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy. The policy seems sufficiently important to warrant more than one post. Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy. Tomorrow,… More
Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards
In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP,… More
If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of EPA’s GHG tailpipe standards. The details may matter only to those subject to the tailpipe rule, but they do demonstrate that EPA is not merely regulating GHG emissions for show;… More
On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June. My immediate reaction? My head hurts.
I don’t mean to trivialize the implementation issues that would likely arise if Congress enacted either a cap-and-trade system or a carbon tax, but they’ve got to pale in comparison to the Rube Goldberg-like system that’s going to be in place once EPA promulgates a final rule. … More
Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions. Although the acid rain provisions of the Clean Air Act are the most well-known example, the CAA also provides for cap-and-trade programs to implement its regional haze regulations. On Monday, the 10th Circuit Court of Appeals affirmed the cap-and-trade program adopted by New Mexico, Utah, and Wyoming.… More
I have previously noted that standing is a double-edged sword. Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court. However, as the D.C. Circuit Court of Appeals demonstrated yesterday, the regulated community is sometimes hoist on its own collective petard.
The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy “building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that, just relying on existing trends and compliance with renewable energy standards, renewable energy can supply 23% of electricity sales nationally by 2030, well above the 12% assumed by EPA.… More
Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature.
Nebraska’s claim was simple – the Clean Power Plan relies in part on technology demonstrated with funding pursuant to the Energy Policy Act of 2005. However, that statute precludes EPA from finding that technologies have been adequately demonstrated for the purposes of § 111 of the Clean Air Act based “solely” on use of the technologies by facilities funded under the Energy Policy Act.… More
The last frontier of citizen climate litigation has been state-based litigation alleging that states have a public trust obligation to mitigate climate change. As I have previously noted, I’m skeptical that these cases are viable. A decision last month by the Supreme Court of Alaska suggests that such skepticism is well-founded.
EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for Some Citizen Suits
This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at the time, that decision clearly had implications beyond the cement kiln rule.
Those implications were made more concrete this week when EPA issued a supplemental notice of proposed rulemaking in which it proposed to rescind its policy allowing affirmative defenses to penalties for excess emissions during startup,… More
I do not want to suggest that most environmentalists are Luddites or that the environmental movement is opposed to economic development. Indeed, hardly a speech is made today that does not tout the economic benefits of environmental protection. Less focus is given, however, to the environmental benefits of economic development.
On Friday, EPA released its “Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards.” EPA staff concluded:
that it is appropriate in this review to consider a revised primary O3 standard level within the range of 70 ppb to 60 ppb. A standard set within this range would result in important improvements in public protection, compared to the current standard,… More
Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean Air Act citizen suit against them concerning the Big Brown (great name for a coal-fired facility!) plant was “frivolous, unreasonable, or groundless.”
The Sierra Club had avoided a motion to dismiss,… More
Last Friday, EPA published notice that it would not be revising its regulations on backup generators in response to three petitions for reconsideration it had received after it promulgated its final rule in January 2013. The rule had sparked controversy, because EPA allowed backup generators to operate for up to 100 hours a year, though EPA did require use of ultra-low sulfur diesel fuel beginning in January 2015.… More
Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.
In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal,… More
In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in Brockton.
First, in City of Brockton v. EFSB, the SJC rejected all of the challenges by the City of Brockton and certain citizens to the Energy Facilities Siting Board approval of the Brockton Power project.… More
Who Gets to Review EPA Actions? The Court of Appeals? The District Court? (Hint: The Answer Is Not “Neither One”)
The general rule under the Clean Air Act is that any:
person may bring suit in district court against the EPA Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district court has jurisdiction “to order the Administrator to perform such act or duty,” as well as to “compel . . . agency action unreasonably delayed.” By contrast, “judicial review of final action by the EPA Administrator rests exclusively in the appellate courts.… More
Last week, the 9th Circuit Court of Appeals affirmed EPA’s approval of Nevada’s State Implementation Plan for regional haze against a challenge by WildEarth Guardians. The decision isn’t earthshaking. However, because it found that WildEarth Guardians did not have standing to challenge EPA’s reasonable further progress determination for measuring visibility improvements, but did have standing to challenge EPA’s determination regarding the Best Available Retrofit Technology for the Reid Gardner Generating Station in northeast Nevada,… More
Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation
As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to highlight the economic costs resulting from gas leaks. Of course, methane is a much more powerful greenhouse gas than CO2, with a global warming potential of 21.… More
The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation
After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would sweep. It is clear that EPA’s order authority under similar statutory provisions – such as those in the Clean Air Act – is also subject to Sackett.… More
Does Offshore Wind Finally Have The Wind At Its Back? DOI Announces Plan For Largest Auction To Date
Earlier this week, DOI Secretary Jewell joined with Governor Patrick to announce plans to auction more than 1,000 square miles on the Outer Continental Shelf offshore Massachusetts for wind energy development. The auction, which will be implemented as four separate leases, pretty much will follow the form of earlier lease auctions:
• Bidders will be prequalified to participate in the auction
• The auction will include multiple factors,… More
More on EPA’s GHG Rule: I Am NOT Going To Set Odds on Whether the Rule Would Survive Judicial Review
Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very) slightly broader look at potential legal challenges.
First, I still think that the most obvious potential plaintiffs, owners of coal-fired power plants, might indeed have standing issues in challenging a rule which maximizes the options for attaining reductions in GHG emissions.… More
As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.
When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity
In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v. EPA, in which the Sixth Circuit Court of Appeals ruled that EPA could not consider two facilities as “adjacent” for Title V and NSR permitting purposes unless they are,… More
Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the evidence?
• The share of allowances held by investors as opposed to compliance entities increased from 6% to 24% over the course of 2013.
• The volume of allowance futures trading rose from 2 million in 2012 to 76 million in 2013.… More
As we have noted previously, EPA has had difficulty in promulgating a revised National Ambient Air Quality Standard for ozone. Whenever the revised NAAQS is issued – and EPA is under court deadline to propose a draft by December 1, 2014 and a issue a final by October 1, 2015 – the actual standard that EPA is likely to issue is coming into focus.
Late last week,… More
The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution
The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents, the decision does not surprise me. EPA pretty much did what it was told when the Bush era CAIR rule was struck down. Moreover, EPA crafted a rule that seems to me fully within its discretion under the Clean Air Act and which,… More
Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that the United States could pursue injunctive relief claims against United States Steel with respect to allegations by EPA that US Steel had made major modifications to its plant in Gary,… More
Cement Kiln Operators Better Hope that Their Control Technology Works: D.C. Circuit Vacates EPA’s Affirmative Defense Rule
Last week was hazardous air pollutant regulation week at the D.C. Circuit Court of Appeals. First, as we reported, the Court affirmed EPA’s mercury air toxics rule, determining that EPA need not take cost into account in promulgating rules for electric generating units (EGUs) under § 112(n) of the CAA. On Friday, the Court affirmed the substance of EPA’s revised hazardous air pollutant rules for cement kilns,… More
D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis
Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units. The focus of the decision – and the issue on which Judge Kavanaugh dissented – was whether EPA was required to consider the costs that would be imposed by the rule. EPA said no and the majority agreed.
Section 112(n) of the Clean Air Act required EPA to perform a study of the health hazards related to hazardous emissions from EGUs prior to regulating them. … More
ExxonMobil Admits Climate Change Is Real. It also Imposes an Internal Cost on Carbon. Still Not Enough to Get Any Love From the Greens (Interesting Reading, Though)
Last week, in response to shareholder requests that it disclose information regarding how climate change might affect it in the future, ExxonMobil released two reports, one titled Energy and Climate, and one titled Energy and Carbon – Managing the Risks. They actually make fascinating reading and seem to represent a new tack by ExxonMobil in its battle with those seeking aggressive action on climate change.… More
Late last week, in Public Employees for Environmental Responsibility v. Beaudreu, Judge Reggie Walton gave Cape Wind and its federal co-defendants an almost across the board victory in a series of challenges by Cape Wind opponents to a variety of environmental decisions made by federal agencies. We’ll see how many more of these victories Cape Wind can take. Their opponents certainly aren’t going away. In fact,… More
Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds
The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties. The decision may not break any new ground,… More
Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units. The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations. It is also a useful reminder of the extent of deference to EPA in an ordinary case.… More
Last week’s auction of CO2 allowances by the Regional Greenhouse Gas Initiative (RGGI) was the 23rd in the program’s history, but the first auction under the new RGGI rules and reduced cap. The new rules undoubtedly explain why the auction yielded the highest sales price in RGGI history — $4 per allowance. Even more notable, it was the first auction where the clearing price was high enough to trigger the cost containment reserve (CCR). … More
NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference
Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.” At the same time, however,… More
Through the end of 2012, the nine states remaining in the Regional Greenhouse Gas Initiative invested just over $707 million of the proceeds from the RGGI Auctions. But the impact this money will have in the future is even more impressive. According to a report released this week, these investments are projected to return more than $2 billion in lifetime energy bill savings to more than 3 million participating households and 12,000 businesses in the region. … More
As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat came late last week, in Pennsylvania v. Allegheny Energy, when Chief Judge Conti granted judgment for the defendants on claims alleging both NSR and NSPS violations.… More
EPA May Rely — In Part — on Projects Funded Under the Energy Policy Act to Justify the Greenhouse Gas NSPS. That’s Its Story and It’s Sticking To It
As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at projects that have received federal funding or tax credits under the Energy Policy Act of 2005. Apparently, EPA is sufficiently concerned that they have prepared a Notice of Data Availability to be published in the Federal Register. … More
On Monday, EPA released its second external review draft of an updated Policy Assessment on the national ambient air quality standard for ozone. It also released updated draft risk and exposure assessments. To no one’s surprise, the new drafts confirm support for lowering the ozone NAAQS from 75 ppb to a range of 60 ppb to 70 ppb.
Why is this not a surprise? … More
On Tuesday, Governor Patrick announced a series of climate change preparedness initiatives, including about $50 million in funds for a variety of programs. Before summarizing the plan, I’ll note that Massachusetts appears to have jettisoned “adaptation” as the descriptor for programs designed to mitigate the effects of climate change. We are no longer “adapting”. Now, like the Boy Scouts, we will be “prepared.” Shrewd call.
The biggest piece of the pie with be $40 million for a municipal “resilience” grant program,… More
One More Update on the GHG NSPS Rule: EPA Has Improved Its Odds of Surviving Judicial Review, But I’m Still, Still, Skeptical
When EPA’s NSPS Rule for GHGs was published in the Federal Register last week, I noted that the rule might be on shaky ground, because an EPA Science Advisory Board work group had questioned the basis for EPA’s decision that carbon capture and storage is feasible technology. Now it turns out that EPA has provided the work group with some additional information and the work group issued a memorandum last week stating that further review by the SAB is not required. … More
EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday. At least fundamentally, it seems unchanged from the proposal released last September. It is still based on the conclusion that carbon capture and storage is feasible and represents BSER – the best system of emission reduction – for fossil fuel-fired electric steam generating units.… More
In last week’s auction held by the Regional Greenhouse Gas Initiative (RGGI), not only did the allowances sell at $3 — the highest clearing price in four years, other than the June auction’s $3.21 — but a majority of the allowances sold to investors, rather than the large generators of electricity whose carbon dioxide emissions are regulated under RGGI. Fifty-seven percent of the allowances were bought by commodities firms,… More
What Do Midwestern States Have In Common With Groucho Marx? Ask Them Whether They Want to Be Part of the Ozone Transport Region
As the Supreme Court gets ready to consider the validity of EPA’s Cross-State Air Pollution Rule, some of the Northeastern and Mid-Atlantic states are taking another tack to address at least part of the air pollution transport issue. They have petitioned EPA under § 176A of the Clean Air Act to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia to the Ozone Transport Region established under § 184 of the CAA.… More
Just a Hiccup or a Major Obstacle? EPA Science Advisory Board Work Group Recommends that the SAB Review the Science Behind EPA’s Proposed NSPS For Greenhouse Gases
I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious. With few exceptions, courts have affirmed EPA when the regulations were supported by EPA’s science advisors, and struck down the regulations when not supported by those advisors.
Now comes word that a work group of EPA’s Science Advisory Board has recommended that the SAB review the science supporting EPA’s proposed New Source Performance Standards for GHG emissions from electric generating units. … More
Last spring, Robby Sanoff complained in this space about the problem resulting from appellate courts’ refusal to give appropriate discretion to district judges in performing their gatekeeping function under Daubert. As Robby put it:
The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder.
EPA Issues Revised Draft NSPS for Carbon Emissions From New Power Plants: It’s All About Technology Forcing
Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants. It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs CO2/MWh standard. The new proposal would require new large gas plants to meet the 1,000 lbs/MWh standard, but would relax the standard to 1,100 lbs/MWh for small gas plants and for coal plants. … More
More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold
As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification. These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More
The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing
Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing. On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed. Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.… More
We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD Permits Even Absent a State Implementation Plan
Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my point, by affirming EPA’s assertion of PSD permitting jurisdiction in Texas and Wyoming in the face of those states’ failure to prepare state implementation plans to incorporate permitting programs to implement EPA’s greenhouse gas rules under the PSD program.… More
Last Friday, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART, to address regional haze. The Court also affirmed EPA’s promulgation of a federal implementation plan in place of the Oklahoma SIP. While rehearsing the Clean Air Act’s “cooperative federalism” approach, the Court seemed more focused on deference to EPA’s technical assessment of the SIP than on any obligation by EPA to cooperate with states.… More
Mississippi v. EPA: Support of the Clean Air Science Advisory Committee is Not Necessary to Affirm EPA’s NAAQS
On Tuesday, in Mississippi v. EPA, the Court of Appeals for the D.C. Circuit affirmed EPA’s 2008 NAAQS for ozone of 0.075 ppm. However, it remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same 0.075 ppm level. With respect to the primary standard, the Court gave short shrift to industry and red-state challenges that the standard was too stringent. This is not surprising,… More
Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind State
On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the upwind state without waiting for the upwind state to complete its own SIP process, which would presumably result in appropriate controls to protect the downwind state. … More
One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions
On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources. EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be. … More
The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations
Earlier this week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison. Commonwealth Edison was the prior owner of the plants at issue and modified them at various times from 1994-1999 without obtaining PSD/NSR approvals before doing so. Midwest Generation purchased the plants and continued to operate them. In 2009, the United States sued both Commonwealth Edison and Midwest Generation. … More
Sometimes the most valuable research turns out to be a confirmation of the obvious. Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially decreased life expectancy among people in China living in areas where coal has for many decades been used to heat homes. The study is based on a long-standing policy in China of distributing coal free to residents who live north of the Huai River but not to people living south of the river. … More
On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations. These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review.
President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act. At a certain level, there is not much new here. The mere existence of the Plan and the commitment to address climate issues is presumably the point.
The Plan does not provide many specifics. … More
The Supreme Court Agrees to Review the CSAPR Decision: Might EPA Avoid Version 3 of the Transport Rule?
The Supreme Court today granted certiorari in EPA v. EME Homer City, the challenge to EPA’s Cross-State Air Pollution Rule, or CSAPR. The Court of Appeals for the District of Columbia had struck down the rule, over a fairly blistering dissent from Judge Judith Rogers.
Speculation over the reasons why the Supreme Court takes a case is often pointless, but I will say this: Consideration of the history of EPA’s rulemaking leads to the conclusion that the rule should be upheld.… More
On Tuesday, the Bureau of Ocean Energy Management announced that the first auction of leases of offshore wind areas will be held on July 31. Even though it now looks as though Cape Wind will eventually get to the finish line, this competitive lease auction, for areas off the coast of Rhode Island and Massachusetts, can really be seen to mark the true beginning of an offshore wind market.… More
It has not been a good run for plaintiffs in private climate change litigation. As we noted last week, the 5th Circuit Court of Appeals affirmed dismissal in Comer v. Murphy Oil. Now, on Monday, the Supreme Court denied certiorari in Native Village of Kivalina v. Exxon Mobil. Kivalina ended more with a whimper than a bang,… More
Do Liability Policies, Particularly Pollution Liability Insurance Policies, Exclude Coverage for All Injunctions? The Fifth Circuit Says No.
The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The policyholder sought coverage for a Clean Air Act suit by the United States alleging unpermitted major modifications that resulted in increased emissions of sulfur dioxide and nitrogen oxide. The insurer disputed coverage on the ground that the government under the Clean Air Act was seeking not remediation costs or compensatory damages but an injunction to repair emission control equipment to comply with regulatory standards. … More
On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”). The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour. The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable. EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.… More
On Thursday, in United States v. DTE Energy Company, the 6th Circuit Court of Appeals revived EPA’s enforcement action against DTE energy for alleged NSR violations at DTE’s Monroe Power Plant. As the dissent notes, it may be a hollow victory.
The facts trace a familiar NSR enforcement case trajectory. In 2010, DTE commenced a $65 million maintenance project at Monroe,… More
Not a Shining Moment For Congress: Two Leading Economists Note the “Sordid History” of Cap-and-Trade Legislation
I have previously blogged about how strange our politics has become, when cap-and-trade programs, previously touted by conservatives and viewed skeptically by environmentalists as a “license to pollute,” somehow become for conservatives the poster child of big government programs. It is nice when economists as respected as Dick Schmalensee and my friend Rob Stavins make the same point. I’m not sure I can put it much more succinctly than this:
It is truly ironic that conservatives chose to demonise their own market-based creation.… More
The California Air Resources Board just released the results of its second auction of GHG allowances. While the auction for vintage 2013 allowances was still healthy, with all allowances sold at $13.62/allowance, the future auction, for vintage 2016 allowances, did not fare so well. Fewer than half the allowances sold, and the clearing price was CARB’s reserve price of $10.71/allowance.
Why the disparity? It’s significantly above any reasonable discount rate. … More
Today, Mayor Menino forwarded to the Boston City Council proposed amendments to the City of Boston Code that would require owners of many city buildings to report their energy and water use annually. That information would then be made available to the public – presumably so that the market can work its magic and informed consumers can put pressure on building owners to increase the efficiency of their buildings.… More
Combine New Gas Plants, Lower Gas Prices, and More Stringent Emission Controls and What Do You Get? Lower Emissions
- Total emissions of NOx, SO2, and CO2 have decreased by 12.1%, 29.5%, and 10.2% from 2010 to 2011
- Emission rates for NOx, SO2, and CO2 have decreased by 8.7%, 25.8%, and 5.9% over the same time period
As our observant readers will have inferred,… More
It was a busy week on the climate change front in Boston. First, RGGI announced a new Model Rule. Under the new Model Rule, summarized here, the 2014 cap would be reduced by 45%, from 165 million tons to 91 million tons. Because such a sharp decrease in allowances will be expected to cause an increase in allowance prices, RGGI has now provided a safety valve,… More
When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?
In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States. The case is Rose Acre Farms v.… More
What Makes One Invalid Rule More Valid Than Another? The Court of Appeals Declines to Rehear CSAPR, and Leaves CAIR In Place
Today, the Court of Appeals for the District of Columbia declined EPA’s petition for rehearing en banc in EME Homer City Generation v. EPA, leaving the original panel decision striking down EPA’s Cross-State Air Pollution Rule in place. Environmental groups had hoped for a rehearing based on Judge Rodger’s emphatic dissent, but a request for en banc review is always an uphill battle.… More
In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting requirements for new sources of PM2.5. Both the SIL and SMC provisions provided important exemptions from the PSD permitting regime. The Court ruled that neither provision was justified given the inflexible language of the Clean Air Act.… More
EPA Splits the Baby on Backup Generators: Still Allows 100 Hours Use, But Now Requires Ultra Low Sulfur Diesel
Yesterday, EPA finalized revisions to the National Emissions Standards for Hazardous Air Pollutants for stationary reciprocating internal combustion engines, or – one of my new favorite acronyms – RICE. The biggest dispute over the rule was the extent to which it would allow backup diesel generators to run for demand response purposes.
On Friday, the Court of Appeals for the District of Columbia Circuit rejected EPA’s approach to implementation of the PM2.5 NAAQS. The fine particulate NAAQS was first published in 1997, and EPA issued implementation rules in 2007 and 2008. Those rules specified that EPA Subpart 1 of Part D of title I of the CAA – the general implementation provisions – rather than Subpart 4, which applies specifically to PM10. … More
Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”
In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups. The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance,… More
I Guess You Can’t Say That EPA Gives Lumps of Coal For Christmas Presents: It Does, However, Finalize Adjustments to the Boiler MACT Rule
Last Friday, just in time for the Christmas holiday, EPA finalized revisions to the Boiler MACT rule. As it has done with other significant rules, EPA basically fine-tuned the existing rule, responding to some specific comments, adding a smidgen of flexibility here, and a dash of extra time to comply over there. I think that EPA deserves credit for responding to the regulated community, while still imposing rules that provide significant benefits.… More
1. Because, in 2009, the District of Columbia Court of Appeals rejected EPA’s prior effort to keep the PM2.5 standard at 15 ug/m3.
This week’s auction of greenhouse gas allowances by the Regional Greenhouse Gas Initiative (RGGI) marked the 18th in that organization’s history. According to the market monitor report published today, only 53% (19.7 million) of the 37.5 million allowances offered for sale by the 9 state group sold at the required floor price of $1.93, all to electric generators regulated by the carbon dioxide-capping program. Participation in the auction remained low at 29 bidders,… More
The Massachusetts DPU Approves the Cape Wind NSTAR Contract: Do I Feel Wind At The End Of The Tunnel?
On Monday, the Massachusetts DPU gave an early holiday present to Cape Wind, by approving the power purchase agreement it entered into with NSTAR. When the 27.5% of Cape Wind represented by this PPA is added to the 50% included in the National Grid PPA, it is looking more and more as though Cape Wind will actually make it to the finish line.
Last week, EPA announced that it had reached yet one more – its 24th – settlement under as a result of its NSR enforcement initiative. This time, it was Louisiana Generating’s Big Cajun II plant, in New Roads, Louisiana. By now, the contours are familiar, including a penalty of $14 million and injunctive relief estimated to cost approximately $250 million. Changes will include:
- Installation of SNCR (not SCR) on all units to control NOx.…
At California’s inaugural auction of greenhouse gas allowances last week, bidders bought all 23.1 million allowances for 2013 emissions sold at $10.09 per ton, a few significant cents above the floor price of $10. The price and relatively high demand for the allowances — with the state receiving three times as many bids as allowances available for sale — bodes well for the fledgling market. There is clearly more interest in the California market than for RGGI: the $10.09 per ton price is over five times the price garnered at the latest RGGI auction ($1.93),… More
There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.
First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. … More
Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change. Sunstein’s argument is that
Economists of diverse viewpoints concur that if the international community entered into a sensible agreement to reduce greenhouse gas emissions, the economic benefits would greatly outweigh the costs.
I don’t disagree with anything he says;… More
The Daily Environment Report last week provided an update on the current status of EPA’s development of a new National Ambient Air Quality Standard for ozone. The current 8-hour standard of 75 ppb is going to be revised downward; EPA currently plans to issue a final rule by September 2014.
Two trade press reports today make clear how difficult it will be to put a price on carbon in the U.S. any time soon. First, today’s ClimateWire reported that climate skeptics are trying to preempt any effort by conservative budget-balancers to use a carbon tax to accomplish budget goals while still cutting income taxes. ClimateWire quotes Myron Ebell of the Competitive Enterprise Institute as saying that
We have to make the idea of a carbon tax toxic.… More
Accidental Success? Even Without National Climate Policy, US Emissions May Fall Enough To Avoid Failure
In 2009, at the international climate talks in Copenhagen, Denmark, President Obama pledged that the US would reduce its greenhouse gas emissions 17% below 2005 levels by 2020. Since then, national efforts toward comprehensive climate legislation, or even making concrete strides to intentionally reduce emissions on a national scale have been, let’s say… lackluster. But even so, a recent report by Resources for the Future predicts that the US will hit 16.3% reductions over a 2005 baseline by 2020. … More
Late last month, in Wildearth Guardians v. Lamar Utilities Board, Judge David Ebel ruled that Lamar violated the Clean Air Act by not obtaining a MACT determination, given that its potential emissions of hydrochloric acid were 10.3 tons per year, above the 10 tpy limit for any single hazardous air pollutant. The decision provides an abject lesson on the costs imposed by regulatory uncertainty.
The facts,… More
Another Nail in the Public Nuisance Litigation Coffin: The 9th Circuit Affirms Dismissal of the Kivalina Claims
On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.
As most readers will know, last year,… More
Last week, in United States v. Louisiana Generating, EPA won a ruling regarding what type of projects fall within the routine maintenance, repair or replacement exception from the rule that facility modifications are subject to PSD/NSR requirements. The decision is thorough in that it carefully reviews the so-called “WEPCO Factors” – the nature, extent, purpose, frequency, and cost of the work, and applied them to the work at issue in this case,… More
I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.… More
EPA Approves Colorado’s Regional Haze Plan: What Does Colorado Know That the Rest of the Country Hasn’t Yet Figured Out?
On Tuesday, EPA formally approved Colorado’s state implementation plan to address regional haze. According to a press release from Governor John Hickenlooper, the plan will reduce power plant emissions by more than 70,000 tons by 2018. Notably, it will include closure of coal-fired power plants. Indeed, Daily Environment Report stated that “coal-fired power generation will be gone from the Denver metro region by 2018” as a result of the plan.… More
Last week marked the 17th Auction in the Regional Greenhouse Gas Initiative (RGGI). The number of bidders who went through the process of qualifying to participate in the auction is the lowest it has been in the program’s history — 29, down from 35 from the last auction in June, and well below the high of 84 in the first auction involving all member states, held in December 2008.… More
Judicial Activism and Judicial Restraint: The 5th Circuit Vacates EPA’s Disapproval of Texas SIP Revisions Concerning Minor Sources
On Friday, in Texas v. EPA, the 5th Circuit Court of Appeals vacated EPA’s decision rejecting Texas’s SIP revisions that would have implemented (and did implement, for 16 years) a Flexible Permit Program for minor NSR sources. While genuflecting at the altar of deference to agency decisionmaking, the Court concluded that EPA’s rejection was not based on either EPA factual determinations or on its interpretation of federal,… More
For those of you following EPA’s proposal to allow increased use of backup generators used in demand response programs, NESCAUM has now joined the fray. In a report released yesterday and available on its website, NESCAUM stated that:
Preliminary screening analyses indicate that uncontrolled diesel backup generators operating under the exemption included in EPA’s recent proposal could by themselves create hotspots exceeding the national health-based 1-hour NO2 air standard.… More
Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals affirmed EPA’s decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA’s determination regarding excess emissions during startup,… More
On Friday, EPA announced that it was reconsidering part of the Utility MACT rule. As part of the reconsideration, EPA will stay the effectiveness of the new source emission standards in the rule for three months.
EPA stated that:
We anticipate that he focus of the reconsideration rulemaking will be a review of issues that are largely technical in nature. Our expectation is that under the reconsideration rule new sources will be required to install the latest and most effective pollution controls and will be able to monitor compliance with the new standards with proven monitoring methods.… More
On Wednesday, I discussed the DC Circuit’s decision affirming EPA’s revised NAAQS for NOx. Today, the DC Circuit upheld EPA’s revised SO2 standard. The tenor of today’s decision, written by David Sentelle, another Reagan appointee (the NOx decision was written by Douglas Ginsburg), is fairly similar to that in the NOx decision. Here’s the short version of the opinion:
EPA must establish NAAQS that protect public health with “an adequate margin of safety.” For that reason,… More
For those of you following the public trust climate litigation in New Mexico, Judge Sarah Singleton has now issued a written decision denying the state’s motion to dismiss the case. There is no discussion of the issues, but it did seem worth noting that Judge Singleton also denied the state’s request for immediate interlocutory appeal (though providing that the request could be renewed after summary judgment),… More
Not a Good Start for Challenges to EPA NAAQS Revisions: The District of Columbia Court of Appeals Affirms EPA’s New NOx NAAQS
Yesterday, in American Petroleum Institute v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s revisions to the National Ambient Air Quality Standard for NOx. The revisions adopted, for the first time, an hourly NAAQS for NOx, in addition to the annual standard.
API made a number of assertions that EPA had been arbitrary and capricious in its review of the scientific evidence concerning potential short-term impacts. The most important were EPA’s reliance,… More
As I noted in May, EPA’s recent proposed rule regarding backup generators would allow additional operations by such generators when used to assist in demand response. It’s a tricky issue, because diesel generators are not clean, and the aggregated emissions from a number of small, but uncontrolled diesel generators can be significant.
For now, based on the proposal, EPA has come down on the side of encouraging the demand response industry. Nonetheless,… More
that state permitting authorities have not had sufficient time to develop necessary permitting infrastructure and to increase their GHG permitting expertise and capacity. By the same token, EPA and the state permitting authorities have not had the opportunity to develop and implement streamlining approaches.… More
Last week, I noted that the Bureau of Ocean Energy Management announced that it had identified an area for commercial wind energy leasing offshore Massachusetts. This week, BOEM announced the availability of an Environmental Assessment to support commercial leases in an adjoining parcel offshore both Massachusetts and Rhode Island. (Couldn’t find a photo with good resolution. The figure is obviously in the EA,… More
Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, such public trust doctrine had been displaced by the federal Clean Air Act.
Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C. Circuit Court of Appeals rejected all challenges to EPA’s GHG rules. The decision is a reminder that important cases, or those with big stakes, are not necessarily difficult cases. Anyone reviewing the decision will quickly see that, to the court, this was not a hard case. Indeed, the tone of the opinion has the feel of a teacher lecturing a student where the teacher has a sense that the student is being willfully obtuse.… More
Last Thursday, in response to a court order, EPA finally proposed revisions to the national ambient air quality standard for PM2.5. The most significant part of the rule is EPA’s proposal to lower the primary annual standard from 15 ug/m3 to a range of from 12 ug/m3 to 13 ug/m3.
At a certain level, the proposal should not really be news and should not have a significant impact. After all,… More
In RGGI News: Compliance is Up, Emissions are Down, Sales are Flat, and New Jersey and New Hampshire are Either In Or Out
There have been a number of news stories about the Regional Greenhouse Gas Initiative (RGGI) in the last few weeks. First, nearly all of the 211 power plants subject to the requirements of RGGI’s first compliance period met their compliance obligations for 2009-2011. Only five facilities failed to hold enough allowances in their compliance accounts to cover their emissions from this period — four plants from New York,… More
One Small Step For Regulatory Coordination: EPA Incorporates the Transport Rule Into the Regional Haze Rule
On May 30, EPA issued a final rule as part of its regional haze program. The most significant aspect of the rule is the determination that the trading programs in EPA’s Trading Rule, now known the by inelegant acronym CSAPR,
achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology, or BART.
Of course,… More
Yesterday, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal merit and good public policy are another matter.
In any case, the plaintiffs sued EPA and various other federal agencies, seeking a finding that the agencies have failed adequately to protect a public trust asset,… More
Yesterday, EPA released proposed revisions to its rules governing emissions from emergency back-up generators. It’s not always the most exciting of topics, but it is important. Many facilities have back-up generators and I know from experience advising clients that, precisely because back-up generators do not run that often, operators can run into compliance issues.
The most important aspect of the proposed rule is that EPA would allow back-up generators to run for up to 100 hours without being subject to emissions limits for the following reasons:
- Monitoring and testing
- Demand response
- Voltage changes of at least 5%
Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in a home rule state that would have a fighting chance to win any national NIMBY championship competition. … More
The first is that, as a policy matter, the deferral was absolutely the right thing to do. The science remains complex and not fully understood. Any regulations promulgated now are likely to be revised at some point. That kind of regulatory uncertainty is not any way to run an agency.… More
RGGI may not be particularly relevant, but it is not thereby a flawed system; surely it is not a failure. Rather, a great environmental success has been achieved by the “fortunate coincidence”… More
One of my favorite rants concerns the pessimism of most environmentalists. It’s probably a pointless rant, both because one cannot control whether one is an optimist or a pessimist and because very few people, and almost none of the environmentalists I know, will ever admit to being a pessimist. Nonetheless, it’s a real issue, because the point of the Cassandra myth wasn’t just that she could predict the future,… More
Massachusetts was one of the first states to launch an ambitious greenhouse gas reduction program, setting a 2020 goal of cutting emissions 25% from 1990 levels and a 2050 goal of an 80% reduction. With less than eight years to go before 2020, is the Commonwealth on track to measure up? According to a report released this week by think tank MassINC and the Clean Energy States Alliance,… More
Yesterday, Greenwire reported about speculation regarding what impact EPA’s proposed New Source Performance Standards for greenhouses gases would have on potential regulation of existing sources. As Greenwire noted, while EPA sought to downplay the impact of the NSPS on regulation of existing sources, both environmentalists and industry representatives think that regulation of existing sources is pretty much inevitable.
My favorite bit from the story is that OMB apparently deleted the following language from EPA’s proposal:
At a future date,… More
On Tuesday, EPA announced release of its proposed New Source Performance Standards for carbon pollution from new power plants. I’m feeling like a broken record here. Everyone’s acting on rational motives (if not rationally), but the result remains, to put it mildly, suboptimal. On the paramount environmental issue of the day, we’re going about it all wrong, when we know that there is a better way.
I cannot really blame EPA or the environmentalists. … More
The auction held last Wednesday, March 14th, by the Regional Greenhouse Gas Initiative (RGGI) was the fifteenth held so far — making it seem far from novel — but as we highlighted in January, this first auction of RGGI’s second compliance period could provide interesting insight into the future of the program.
Since I already violated my rule against speculating on the outcome of a case based on oral argument, I might as well do it again. I have always said that EPA’s endangerment finding would survive judicial review and that conclusion seems only more likely to prove correct following yesterday’s oral argument before the D.C. Circuit Court of Appeals.
Both the Daily Environment Report and GreenWire noted in their reporting on the argument that the groups challenging the rule emphasized that EPA had not considered the policy implications of making the endangerment finding. Of course. Precisely. That’s because the Clean Air Act itself divorces the endangerment finding from its policy implications. If there were any doubt about that,… More
On Friday, EPA released “Step 3” of the GHG Tailoring Rule. The big news is no news at all. EPA left the GHG permitting thresholds unchanged, at 100,000 tons per year of carbon dioxide equivalent for new facilities and increases of 75,000 tpy of CO2e for existing facilities. In a phrase repeated in EPA’s fact sheet, keeping the thresholds unchanged is part of EPA’s “common sense … approach” to GHG permitting.… More
On Friday, EPA finally issued its long-awaited revised risk assessment for tetrachloroethylene, also known as perc or PCE. EPA also issued a fact sheet summarizing its current views about PCE and how the new risk assessment fits into the Clean Air Act, Safe Drinking Water Act, and CERCLA regulatory regimes.
Because PCE is present at so many Superfund Sites, and given the number of dry cleaners – including many in residential areas – still using PCE,… More
Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.… More
When I last posted on the potential impact of the Utility MACT rule on electric system reliability, I swore I was done with the subject. I knew then it was probably a mistake. Yesterday, FERC announced that it has issued a White Paper on how it will respond to requests by generators to EPA for an extension of time to comply under the Utility MACT rule. Since FERC has invited comments on the White Paper,… More
The nine states still participating in the Regional Greenhouse Gas Initiative are getting ready for the first auction of RGGI’s second compliance period, scheduled for March 14th. In the auction notice released last week, they announced 4 changes to the program, and analysts are predicting there are far more significant changes to come — namely adjustments to the total emissions cap.
As readers of this blog know, the impact of EPA air rules, including in particular the Utility MACT rule, on the reliability of the nation’s electric grid has been the subject of much speculation. Last week, the Congressional Research Service weighed in, with the exciting headline: EPA’s Utility MACT: Will the Lights Go Out?” Of course, notwithstanding the sexy title, the CRS conclusion can be summarized pretty simply: the MACT rule will not cause the lights to go out. Money quote:
although the rule may lead to the retirement or derating of some facilities,… More
Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week,… More
The decision yesterday in United States v. Minnkota Power Cooperative serves as a useful reminder regarding how important the burden of proof is in review of agency decisions. The case started in 2006, as part of DOJ’s NSR enforcement initiative, when the United States and North Dakota brought suit against Minnkota’s Milton R. Young Station. The parties settled and a consent decree was entered. Apparently,… More
The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given the (one hopes) temporary problems with the federal loan guarantee program and Cape Wind’s failure thus far to sell the rest of the power from the project,… More
On Wednesday, EPA promulgated the final Utility MACT rule. I doubt that anyone reading this blog isn’t already aware of the big news.
As seems frequently to be the case with EPA rules, this one, weighing in at 2.4MB and 1,117 pages, cannot easily be summarized here. In fact, the rule is so complicated – and controversial – that EPA had to generate four separate fact sheets to summarize the rule and its impacts: (1) Costs and Benefits (or,… More
Market-watchers thinking that having friends in Congress means that coal can flourish despite EPA regulation on many fronts may have a different view to ponder. Goldman Sachs predicted last week that generators will continue to switch from coal to natural gas and downgraded the prospects of the coal industry from “attractive” to “neutral.” Specifically, Goldman predicted that 51 GW of coal electric generating capacity are on their way out and that EPA Cross State Air Pollution Rule,… More
On Friday, EPA proposed certain revisions to its rule on air emissions from boilers and commercial and industrial solid waste incinerators (CISWI). As with other major rules under development in the past few years, EPA has taken fairly substantial steps to limit the reach of the rule to those boilers and CISWI that are of greatest concern. Without engaging in formal cost-effectiveness analysis, EPA has sought to make the rule as cost-effective as possible.… More
Yesterday, the North American Electric Reliability Corporation, or NERC, released its 2011 Long-Term Reliability Assessment. The NERC report identified environmental regulations as one “of the greatest risks” to reliability. Much of the focus of the concern was on EPA’s MACT rule for hazardous air pollutants and its 316(b) rule for cooling water intake structures. While expressing uncertainty about these not-yet finalized rules, the NERC report took an extremely cautious approach,… More
There has already been significant attention devoted to whether EPA’s “train wreck” of rules affecting coal-fired power plants would affect electric system reliability. The Congressional Research Service analysis looked at the coming rules more broadly, but did touch on reliability, noting that most of the coal plants likely to be retired as a result of EPA regulations are small and inefficient, and already run infrequently. As we noted last June,… More
With the first compliance period in the Regional Greenhouse Gas Initiative (RGGI) coming to a close in December, it seems an appropriate time to look back at what we can learn from the country’s first market-based program aimed at reducing emissions of carbon dioxide from power plants. A report released Tuesday by the Analysis Group analyzed the economic impacts of RGGI – how the program impacted electricity prices,… More
Two seemingly unrelated stories from last week suggest that EPA may have its limits in how far it is going to go to make nice with those who are opposing its regulatory agenda. The first story, reported by Greenwire, is pretty much all in the headline: “EPA official accuses Kan. department of lying over proposed plant.” The second story, also from GreenWire, reported that EPA Administrator Lisa Jackson referred to opponents of EPA’s greenhouse gas tailoring rule as “… More
EPA may have had problems in court in recent years defending its regulations, but it has generally fared much better in its enforcement cases. Earlier this week, however, EPA suffered what will be, if it is affirmed, a devastating defeat in its PSD/NSR enforcement initiative. In United States v. EME Homer City Generation, Judge Terrence McVerry concluded that the government could get no relief against either the former owners of the facility or the current owners or operator. No penalties. No injunctive relief. No relief under state law. Nothing. Nada.… More
The most popular suite of tools to measure and manage greenhouse gases just got a lot more complete — allowing companies to track the impact of their products from natural resources and raw materials, through manufacturing, use and disposal, and providing a detailed framework to measure companies’ “everything else” Scope 3 emissions.
The Greenhouse Gas Protocol Initiative (a collaboration between the World Resources Institute and the World Business Council for Sustainable Development) finalized its two newest global greenhouse gas standards on October 4. The GHG Protocol are the most widely used suite of accounting tools for measuring,… More
In the Carbon Disclosure Project’s 2011 analysis of the largest 500 companies, the Global 500, there is a very interesting statistical trend — the companies who were the most strategically focused on accelerating low-carbon growth had returns from January 2005 to May 2011 that doubled the Global 500 as a whole, with returns totaling over 85%, compared to the 42.7% returns for the index. Even more amazingly,… More
Following EPA’s decision last week to scrap its reconsideration of the 2008 ozone National Ambient Air Quality Standard, the parties to the litigation challenging the 2008 standard are back in court. This week, EPA submitted a brief to the Court of Appeals, which was pretty much a six-page version of Roseanne Roseannadanna’s “Never mind.” After telling the Court for years that it should defer to EPA’s reconsideration process – a decision on which was always just around the corner,… More
The Regional Greenhouse Gas Initiative (RGGI) celebrated its third anniversary by holding its 13th quarterly auction of carbon dioxide allowances on Wednesday. As today’s Market Monitor report highlights, although the number of bidders was up, the percentage of allowances purchased was down. Thirty-one bidders purchased just under 18% of the 42,189,685 current compliance period allowances offered for sale by the 10-state group (including New Jersey). These allowances, with vintage dates from 2010 and 2011,… More
Yesterday, in commenting on the court battle over EPA’s reconsideration of the ozone NAAQS, I said that I would be surprised if EPA doesn’t issue the new standard within six months. Oops. My bad. Today, President Obama directed EPA to give up on the reconsideration effort. It’s difficult not to be cynical about the White House decision. As much as I admire Cass Sunstein, his letter to EPA providing the basis for the White House decision is not persuasive. Basically,… More
This week, EPA filed a brief with the D.C. Circuit Court of Appeals, arguing that, notwithstanding its fourth delay in issuing a decision on its reconsideration of the NAAQS for ozone, the court cannot and should not order EPA to issue a decision. Industry shouldn’t get too excited, however. In the same brief, EPA telegraphed pretty clearly, consistent with its 2010 proposed rule, that it remains on track to significantly decrease the ozone standard from the 0.075 ppm standard promulgated by the Bush administration in 2008.… More
As the deadline passed last week for submitting comments on EPA’s Utility MACT rule, it’s worth taking a big picture look at how the commenters line up. Big utility groups, such as the Edison Electric Institute and the American Public Power Association are looking for EPA to delay the rules. The basic argument is that it is going to take a long time to comply. EEI states that so many facilities will require extensions that the number of requests will create a backlog that will itself essentially create compliance problems.… More
The Environmental Protection Agency proposed a rule yesterday that would exempt carbon dioxide injected into underground carbon capture & storage (CCS) wells from regulation as hazardous waste, so long as the CO2 is held in wells designated for that purpose under the Safe Drinking Water Act. In its press release announcing the program, EPA noted that the purpose of the regulation — as well as its prior rulemakings under the Clean Air Act to require emissions reporting by CCS facilities,… More
According to EPA, buildings account for 36 percent of total energy consumption and 65 percent of electricity consumption in the United States. In the absence of comprehensive legislation that would put a price on carbon, which would give building owners direct incentives to implement cost-effective efficiency measures, a number of jurisdictions have started looking into and in some cases implementing requirements that at least commercial buildings be subject to energy efficiency ratings.… More
Among Cap and Trade, RES, and CES, Which Would Work Best? The One That’s Not Currently Under Consideration
After the death of Waxman-Markey, and given the current political climate, cap and trade is the Legislation Which Shall Not Be Named. Instead, there is discussion of either a renewable electricity standard (RES) or clean electricity standard (CES), and the talking points for supporters concern energy security and the growth of a clean energy economy, not climate change (also known as the Reality Which Shall Not Be Named).… More
Last week, AEP announced that it was putting on hold its plans to develop commercial scale carbon capture and storage technology at its Mountaineer plant in New Haven, West Virginia. As explanation, AEP cited the uncertain status of U.S. climate policy. More specifically, AEP CEO Michael Morris noted that it is difficult to get regulatory approval to recover CCS capital costs until GHG reductions are required.
Last week, in Center for Biological Diversity v. EPA, Judge Henry Kennedy reminded us that, in thinking about whether the existing Clean Air Act requires EPA to address climate change, the actual words of the statute matter. The scope of the climate problem does not obviate the need to parse individual provisions of the CAA and Massachusetts v. EPA did not resolve all issues. … More
Yesterday, EPA finalized the Cross-State Air Pollution Rule, or CSAPR, which was the Transport Rule, which had been the Clean Air Interstate Rule. (EPA must have decided that CSAPR results in a more mellifluous acronym.)
The rule is almost too big to describe, except in its broadest terms. EPA has provided a summary of costs and benefits, but even EPA’s summary does not really explain how the rule will be implemented.… More
Yesterday, the Supreme Court announced its decision in American Electric Power v. Connecticut, holding that EPA’s authority to regulate greenhouse gases under the Clean Air Act displaced federal common law nuisance claims. I have always thought that the displacement argument was correct, so the decision is not really a surprise (and the 8-0 decision and crisp opinion only confirm that view). The decision is nonetheless important and,… More
After a relatively quiet period, there were a number of items of interest on the air/climate front this week. First, AEP announced that upcoming pollution controls would result in shutting down 6,000 megawatts of coal-fired capacity, or 25% of its coal fleet. AEP also announced that it would spend $6 billion to $8 billion in bringing the rest of its fleet into compliance.
On the flip side of this issue,… More
Demand for allowances in the nation’s only cap-and-trade program for carbon dioxide emissions fell sharply last week. At the 12th Quarterly Auction of the Regional Greenhouse Gas Initiative (RGGI), held on June 8th, 70% of the current compliance period allowances went unsold. As the RGGI Market Monitor Report highlights, with only 25 bidders participating in the auction of the 2009-2011 compliance period allowances, only 30% of the 42 million allowances offered for sale by the 10-state group (including New Jersey) were actually purchased at the floor price of $1.89. … More
The uncertain and often lengthy time to get permitting decisions is always near the top of the list of industry complaints. Section 165 of the Clean Air Act provides some relief by requiring certain permit decisions to be made within one year. Last week, in Avenal Power Center v. EPA, District Judge Richard Leon, in what may comfortably be described as a strongly-worded opinion, held that EPA may not circumvent the one-year limit on permit decisions by carving out from the one-year period the time spent by the Environmental Appeals Board reviewing EPA’s permit decision.… More
The Regional Greenhouse Gas Initiative (RGGI) took a bit of a blow today when Governor Christie of New Jersey, the second-largest of the 10-state group, announced that the state was leaving the organization. This comes only a few weeks after the narrow defeat of bills to repeal RGGI in New Hampshire, Delaware and Maine. However, RGGI announced on its website that the participating states would proceed with their 12th quarterly auction as scheduled on June 8th. … More
Late last week, the Massachusetts Department of Energy Resources (DOER) filed with the Joint Committee on Telecommunications, Utilities, and Energy of the state legislature proposed final amendments to the Renewable Portfolio Standard (RPS) regulations governing the eligibility of woody biomass facilities and fuels to qualify to earn renewable energy credits (RECs). DOER originally issued a draft of these regulations in September 2010, and made revisions after receiving written comments and holding 2 public hearings. … More
Thursday afternoon, EPA and the Tennessee Valley Authority announced one of the largest pollution reduction consent decrees in US history – resulting in between $3 to $5 billion of investment in air pollution controls, and retirement of almost one-third of TVA’s coal-fired generating units within the next few years. Over the next decade, it will reduce TVA’s total emissions of nitrogen oxides by 69% and sulfur dioxide by 67%. … More
The issue of guidance v. regulation has been in the news a lot recently. Recently, the anti-guidance side got what some might consider unwelcome assistance from John Graham, who reviewed regulations in the Bush White House. Graham was quoted as saying that:
The whole idea of guidance not being a rule — there has to be an arrow shot right through the heart of that. [Congress should pass legislation] to make sure that things that look like a duck and quack like a duck are a duck.… More
If anyone had any doubts about the significance of the conventional pollutant regulations that EPA would be rolling out, even in the absence of a full cap-and-trade program for GHG, Wednesday’s release of EPA’s revised power plant MACT proposal should go a long way towards eliminating those doubts. As most readers know, the rule replaces the Bush-era MACT rule that would have created a trading program.
The rule poses a problem for critics of EPA. While arguments can be made about the feasibility of some of the standards and the cost to comply,… More
Last month, in discussing the Administration’s brief in the American Electric Power case, I praised the nuanced and persuasive approach that the Administration took in seeking reversal of the 2nd Circuit opinion allowing the states’ public nuisance climate litigation to go forward. The states seeking to prosecute the law suit have now filed their brief and it turns out that they also do nuance. I still think that the Supreme Court will reverse,… More
While EPA remains under attack by the GOP-majority House, that doesn’t mean that coal is off the hook. To the contrary, coal remains under attack itself. A number of recent stories demonstrate the multi-pronged effort by those who want to reduce or eliminate use of coal. For example, the Environmental Integrity Project and two Texas-based NGOs just filed suit against the Lower Colorado River Authority’s Fayette Power Project,… More
A year has passed since the SEC issued an interpretive release describing the kinds of climate change related disclosures that the Commission believes should be reported by all publicly traded companies, but many questions still remain regarding how to comply. With annual 10-K filings due at the end of this month, concrete examples of best practices in disclosures could be very helpful. Potentially useful is a new report by Ceres that examines the state of disclosures in FY 2009 SEC filings to identify specific examples of how well companies are disclosing information that is important to investors. … More
Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question of course is how to go about regulating indoor air.… More
As almost everyone knows by now, EPA finally issued its long-awaited final rule on Boilers, Commercial and Industrial Solid Waste Incinerators (CISWI), and Sewage Sludge Incinerators (SSI) yesterday. The rule is too complicated even to summarize here. EPA has a useful fact sheet for that purpose.
I’d like to focus on a few broader issues. The rule has widely been seen as the Obama administration’s first formal acknowledgment of the anti-regulation political climate currently sweeping Washington. Indeed,… More
Back in my public policy days, there was much discussion of “muddling through.” When I look at recent developments on the climate and air regulation front, I just see a muddle. First, we have Gina McCarthy, saying that EPA wants to walk before it runs, and assuring utility executives that New Source Performance Standards for GHG emissions will not have a “dramatic effect.” McCarthy further said that EPA will take a “common sense approach,”… More
This week, the United States filed its brief in American Electric Power v. Connecticut. The brief is a nicely nuanced and persuasive argument for dismissal of plaintiffs’ public nuisance claims against five large power generators. The brief is nuanced in that it acknowledges that plaintiffs have Article III standing – allowing the Court to avoid reaching a constitutional standing issue – and provides a vehicle for the Court to avoid reaching the political question doctrine issue.… More
Last month, I noted that, in the absence of comprehensive climate legislation, U.S. carbon policy would be a mish-mash of several elements – including more NSR enforcement. In fact, Phillip Brooks, director of EPA’s Air Enforcement Division, had just told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and he predicted more closures of old coal plants as a result of EPA’s NSR enforcement. … More
Justice Brandeis famously suggested that states may “serve as a laboratory” for the rest of the country. If this is so, I think it is fair to say that U.S. EPA has not accepted the results of the biomass experiment conducted in Massachusetts. Last year, following receipt of a study regarding the GHG emission implications of various types of biomass fuels, Massachusetts decided to severely restrict the circumstances in which biomass would be considered a renewable fuel.… More
With everyone in agreement that cap-and-trade legislation is dead in Congress for the near term, attention is now turning to whether Congress might be able to pass some kind of renewable or clean energy standard. In fact, even Thomas Donahue, President of the U.S. Chamber of Commerce, sworn foe of cap-and-trade legislation, is saying that the Chamber could support some kind of climate change legislation – presumably a CES including nuclear power –… More
Earlier this week, the United States brought another NSR/PSD enforcement action, this time concerning the Homer City Plant, in Pennsylvania. The suit itself isn’t big news, though it’s helpful to have periodical reminders that the NSR enforcement initiative remains active at EPA and DOJ; it is a significant part of the government’s arsenal against traditional pollutants.
It’s also important to remember that,… More
And you thought that the explanation was just partisan gridlock in Washington? According to a study that has been accepted for publication in Environmental Research Letters, it will be somewhere between 120 years and 550 years before losses caused by Atlantic tropical storms can be statistically attributed to anthropogenic climate change. It’s important to note that this study is not by climate skeptics; nor are the authors opposed to Congressional action. They are simply pointing out that it’s damn hard to attribute causation to specific storms or on short time scales. As they note in their conclusions:
Based on the results from our emergence time scale analysis we urge extreme caution in attributing short term trends (i.e.,… More
In what might not be an overstatement, Seth has described Massachusetts’ Global Warming Solutions Act (GWSA), as "the future of everything". If so, welcome to the future of the future of everything. The GWSA requires the Executive Office of Energy and Environmental Affairs (EEA) to set a 2020 goal for state-wide reductions of greenhouse gas emissions, and, before January 1, 2011, to create a plan outlining how to get there. … More
EPA Delivers an Early Christmas Present to Electricity Generators and Refiners — New Source Performance Standards for GHGs
Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to regulate GHGs, the PSD/NSR program or the NSPS program.… More
It says something about where our politics are today when Republican Senator Lindsey Graham has to ask that question. Of course, there’s reason to wonder what the answer is. It was certainly not intentional irony when, shortly after this story appeared about Senator Graham, Senator Rockefeller announced that he has given up on legislation that would delay implementation of EPA GHG rules because the bill has lost Republican support.… More
As a follow-up to last week’s post, if you want a handy-dandy rundown of what U.S. carbon policy looks like in the absence of comprehensive federal legislation, take a look at the presentation I gave last week to the Harvard Electricity Policy Group, which summarizes federal, regional, and state regulatory efforts – many of which are not explicitly directed at CO2 – that are likely to have significant impacts on U.S.… More
Bill Hogan at the Kennedy School (shameless plug for alma mater) kindly asked me to speak at a meeting this week of the Harvard Electricity Policy Group. I’ve titled my talk “Carbon Policy When There Is No Carbon Policy.” Several items that came across the wires in the past few days buttress the theory behind my presentation, which is that our current carbon policy really is “A little bit of this,… More
The 10th auction in the Regional Greenhouse Gas Initiative (RGGI) was held on December 1st. In honor of this significant round number, I give you the top 10 interesting facts about the 10th RGGI Auction, all of which are based on today’s market monitor report:
10) In the Auction, 24,755,000 allowances from the 2009-2011 compliance period sold for $1.86 each (the floor price);
9) … More
One thing supporters of coal will be thankful for tomorrow is this week’s announcement by the Environmental Protection Agency (EPA) that it has finalized two rules governing the underground sequestration of carbon dioxide. Both rules are designed to support and facilitate the commercial development of safe, large-scale carbon capture and storage (CCS) technologies, perceived by many to be the best hope for the future use of coal.
The cap in the nation’s first mandatory cap-and-trade system is probably set too high. As reported by ClimateWire this morning, it seems increasingly likely that participants in the Regional Greenhouse Gas Initiative (RGGI) will easily meet and beat RGGI’s ultimate goal, even without any changes or reductions actually caused by the program.
RGGI’s initial aim was to cut CO2 emissions from large power plants in the 10-state region to 10% below 2005 levels by 2018. … More
EPA has finally released it long-awaited PSD and Title V Permitting Guidance for Greenhouse Gases, also known as the GHG BACT Guidance. E&E News quoted Gina McCarthy as saying that GHG permitting would be “business as usual” and that the transition to issuing PSD permits for GHGs would be relatively smooth.
It’s certainly true that the GHG BACT Guidance says nothing particularly new about how permitting agencies should perform BACT reviews. … More
I’ve always thought that implementation of EPA’s GHG rules for stationary sources was inevitable in the absence of climate change legislation. The Supreme Court told EPA that GHGs are a pollutant under the Clean Air Act. Given the decision in Massachusetts v. EPA, EPA’s subsequent regulatory moves have been pretty much unavoidable.
Since the statute seems to mandate GHG regulation, only Congressional action could block the rules. While a House majority seemed plausible,… More
The world of greenhouse gas reporting just got a little more interesting. The Greenhouse Gas Protocol Initiative (a collaboration between the World Resources Institute and the World Business Council for Sustainable Development, and involving the participation of hundreds of companies around the world), released their draft Scope 3 Accounting and Reporting Protocol on November 5th for stakeholder review. The Scope 3 protocol takes the form of two documents – the Product Accounting &… More
Is mercury a local problem or not? For years, power plant operators have claimed that mercury deposition is really a global problem. Environmentalists have pointed to studies arguing that hot spots affected by local emissions do exist. This week, according to the Cape Cod Times, John Colman, a USGS researcher – hardly likely to be a shill for the power industry – is going to report results of a study showing that mercury accumulation in both soil samples and fish tissue are comparable in Cape Cod and the Olympic Peninsula in Washington. … More
For Coal, It’s Not All About Climate Change: Credit Suisse Predicts New Air Rules to Close 60 Gigawatts of Coal Capacity
Last March, I noted that Gina McCarthy’s belief that, in the near term, the biggest impact on GHG emissions would come from EPA’s traditional regulatory programs, rather than through GHG regulation. A report recently released by Credit Suisse indicates that she might be right. Looking at EPA’s upcoming promulgation of the Clean Air Transport Rule and the mercury MACT rule, Credit Suisse predicts that between 50 and 69 gigawatts of old coal plants will be retired between 2013 and 2017 as a result of implementation of the two rules. Credit Suisse also predicts that approximately 100 gigawatts of capacity will require significant additional investment to comply with the rules.… More
Could carbon-intensive industries and businesses overlooking sustainability soon see their credit ratings fall as a result? Perhaps. According to an article in yesterday’s Daily Environment Report, Standard & Poor’s (S&P) is working on ways to integrate the risks of greenhouse gases into its corporate credit ratings system. The move seems to be driven by factors such as tightening of the EU emissions trading scheme in its third phase, beginning in 2012,… More
In a crisply written opinion by Judge Posner, the 7th Circuit Court of Appeals just reversed a district court judgment against Cinergy in the NSR case involving Cinergy’s power plant in Wabash, Indiana, and directed that judgment enter for Cinergy. It is not obvious that the case will have wide applicability, but it is certainly worth noting.
The first key issue in Cinergy was whether proposed new projects would be subject to NSR review if they were expected to result in an increase in annual emissions or only if they would result in an increase in the hourly emissions rate. … More
Earlier this week, I posted about the dire prospects for climate change legislation following the fall elections. The alternative to legislation has always been regulation under existing Clean Air Act authority, so it’s appropriate as a follow-up to briefly examine the pressures on EPA as it moves forward with its stationary source GHG regulations. Two headlines from the trade press today brought home just what a tightrope EPA is walking.… More
Just In Case You Hadn’t Realized That Climate Legislation Will Be An Uphill Battle In The Next Congress
It’s been obvious for some time that Republican victories in next month’s elections will only make it more difficult to pass climate legislation. However, perhaps the most telling reminder of the difficulty in passing climate legislation came last week from the Democrats, not the GOP. Governor Joe Manchin, running for Senator Byrd’s seat, was endorsed by the West Virginia Coal Association. Among the bullets noted in the press release,… More
A recent amendment to the EPA’s Mandatory Reporting of Greenhouse Gases Rule (40 CFR part 98) requires companies that report their emissions to also provide information on corporate ownership, North American Industry Classification System (NAICS) codes, and whether any of the emissions come from a cogeneration unit. The goal behind collecting this information is to gain a better understanding of the aggregate greenhouse gas (GHG) emissions from corporations and specific industry sectors,… More
On a day when ClimateWire reported that thousands of walruses are stuck on land because their usual summer home – sea ice – has disappeared, I’m beginning to wonder whether EPA’s stationary source GHG rules are similarly at risk. It may not be difficult for EPA to brush off a fairly over the top letter from Texas which basically asked EPA “What part of ‘hell no” don’t you understand?”
The Regional Greenhouse Gas Initiative (RGGI) auction program celebrated its second birthday this week by holding the 9th regional auction of CO2 allowances. As today’s report highlights, the auction brought a bittersweet first for the 10-state program: unsold allowances from both the current and future regulatory periods. Bidders bought only 75% of the 45.6 million 2010-vintage allowances offered and just 61% of the 2013-vintage allowances, with both auctions closing at the mandatory floor price of $1.86.… More
I have previously expressed my distaste for public nuisance litigation to require reductions in GHG emissions. It cannot be more than a tactic in a war to the plaintiffs, because the chaos resulting from regulation of a global problem through a series of individual law suits has to be obvious to everyone. Now, apparently, that chaos is also obvious to the Obama administration, because it has filed a brief with the Supreme Court,… More
On August 12, in Sierra Club v. Otter Tail Power Co., the Eighth Circuit Court of Appeals dismissed the Sierra Club’s suit related to the Big Stone Generating Station, a coal fired power plant in South Dakota. In doing so, it disagreed with EPA and sided with what appears to be the majority on a question that has produced differing responses amongst the courts – whether the Prevention of Significant Deterioration (“PSD”) program prohibits only the construction or modification of a facility without a PSD permit,… More
In February, President Obama tasked the Interagency Task Force on Carbon Capture and Storage with the ambitious goal of overcoming the barriers to widespread, cost-effective deployment of carbon capture and storage (CCS) within the next 10 years. As the first bold step, the 14-agency and executive department group released its findings in a report on August 12.
The report concludes that widespread cost-effective deployment of CCS will only occur if the technology is commercially available (i.e.… More
EPA shows no signs of slowing down in its efforts to use the Clean Air Act’s PSD/NSR provisions as an enforcement club. The latest target in EPA’s crosshairs is the Detroit Edison Monroe Power Plant. Late last month, DOJ filed a complaint alleging violations of PSD/NSR requirements in connection with a project to replace the high temperature reheater and the economizer at Monroe Unit 2. … More
The good news is that EPA is relying on good science. The bad news is that the science says things will keep getting worse.
After several months of review, on July 29, EPA denied 10 petitions to reconsider its 2009 Endangerment Finding for Greenhouse Gases under Section 202(a) of the Clean Air Act. The petitions, which were filed by, among others, the attorneys general of Texas and Virginia and the US Chamber of Commerce,… More
Now that the Senate has put an end to speculation about a federal cap-and-trade program, the laboratory of the states and patchwork of regional regulation seem even more important. The Western Climate Initiative (WCI) will likely involve a little of both.
Yesterday, the WCI Partner Jurisdictions (seven US states and four Canadian provinces) unveiled their comprehensive strategy for a cap-and-trade program with the goal of reducing regional greenhouse gas emissions by 15% below 2005 levels before 2020.… More
My apologies if this post is a mash note to Judge Wilkinson. Sometimes a decision is written with such clarity and simplicity that you have to sit up and take notice. Such is the case with yesterday’s decision in North Carolina v. TVA, reversing the District Court decision imposing an injunction against four TVA plants that would have required installation of additional controls for NOx and SO2 ,… More
Climate change legislation is dead for now. I won’t pretend it’s not depressing, even though I avoid the political channels and ignore the rhetoric. For those of us who haven’t refudiated climate change science, it’s a victory for the pessimists and evidence that Congress has a hard time addressing long-range problems, even if consequential.
With respect to regulation of GHG, it’s the worst of both worlds and no one should be happy (which is why I held out hope until the end that cooler heads would prevail). … More
On July 6, 2010, the United States Environmental Protection Agency (“EPA”) released a proposed rule, dubbed the “Transport Rule”, which would replace the Clean Air Interstate Rule (“CAIR”). As you likely recall, in 2008 the D.C. Circuit Court of Appeals, in North Carolina v. EPA, found that CAIR had a number of fatal flaws and remanded it to the Agency. (Due to its environmental benefits,… More
Not surprisingly, the secondary market price for Regional Greenhouse Gas Initiative (RGGI) allowances fell for the 4th quarter of 2009, as noted by RGGI Market Monitor Potomac Economics in their recent report. Trading in RGGI allowances futures declined from 319 million allowances in the third quarter of 2009 to 127 million in the fourth quarter, despite the number of firms participating remaining the same. Futures prices also declined 8% —… More
It has long been understood that Massachusetts that the Commonwealth cannot meet its renewable energy goals with solar power alone. Solar is great, but really ratcheting up the percentage of energy supplied by renewable sources is going to take a big commitment to wind. In fact, Governor Patrick announced a goal of 2,000 MW of wind on- and off-shore in Massachusetts by 2020. There are currently 17 MW of wind power in Massachusetts.… More
When we blogged about the Mandatory Greenhouse Gas Reporting Program regulations last fall, we noted that the EPA had excluded from the final regulations emission source categories such as wastewater treatment plants and underground coal mines that were initially included in the draft rules. No longer. Yesterday, EPA finalized regulations requiring an estimated 680 facilities in the four sectors of underground coal mines, industrial wastewater treatment systems,… More
Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants.
It may be time to learn a new acronym. The 10 RGGI states, plus Pennsylvania and Washington DC have banded together to create the Transportation and Climate Initiative (TCI) — a group that has pledged to create a plan to address the estimated 30% of greenhouse gas emissions on the eastern seaboard caused by the transportation sector.
EPA held a public hearing this week on its proposed MACT standards for industrial boilers. The issue may not be as sexy as climate change, but it’s an important rule and not just for those operating industrial boilers. For example, the cement industry has burned 50 million tires – including steel belts – according to its own data. EPA wants to classify such tires as a solid waste,… More
A week after the Senate’s rejection of the Murkowki resolution last week, where does climate change stand in Congress? The defeat of the resolution is not the end for those who don’t want EPA to regulate under existing authority. Senator Rockefeller hopes to get to the floor a bill that would delay EPA regulation of stationary sources for at least two years, but keep in place the mobile source compromise reached last year. … More
In the Regional Greenhouse Gas Initiative’s (RGGI) eighth auction of CO2 credits on June 9th, the clearing prices were the lowest yet – $1.88 for 2009-2011 credits and the auction floor of $1.86 for 2012-2014 allowances. Despite these low prices, the auctions still brought in some $80 million. In total, cumulative RGGI proceeds to be used by the 10 participating states for renewable energy, energy efficiency and low-income energy assistance programs now total $662.8 million.… More
Last Friday, the Court of Appeals for the 5th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs’ appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court dismissed the case. A panel of the 5th Circuit reversed.… More
In 1972, Christopher Stone published his seminal book “Should Trees Have Standing?” That same year, Justice Douglas posed essentially the same question in his dissent in Sierra Club v. Morton, in which he argued that inanimate objects should have standing “to sue for their own preservation.”
It now appears that Senator Murkowski’s resolution disapproving EPA’s endangerment finding will come to a vote in the Senate sometime in June. The complexity of the political dynamic is highlighted by the speculation regarding what such a vote will mean. On the one hand, there are those who argue that a significant number of votes for the resolution will mean that climate change legislation is dead.… More
First Kerry-Lieberman, then the Tailoring Rule – a busy week for climate change. Senator Kerry certainly did not miss the coincidence. He called the release of the Tailoring Rule the “last call” for federal legislation. I’ve noted before the leverage that EPA regulation would provide, but this is the most explicit I’ve seen one of the sponsors on the issue.
As to the substance, there are not really any surprises at this point. EPA is certainly working to soften the blow of GHG regulation under the PSD program. Here are the basics (summarized here):
January 2,… More
So, Kerry Lieberman (Graham?), also known as the American Power Act, is here. What does it mean?
My immediate reaction is that, in a big picture sense, they got it just about right. The fundamental issue, which was previously acknowledged by Senator Graham (can we start calling him “he who must not be named?”), is that we’re not going to solve the energy independence or climate change problems unless we put a price on carbon. This bill does that.… More
Yesterday, the Massachusetts Executive Office of Energy and Environmental Affairs released its Revised MEPA Greenhouse Gas Emissions Policy and Protocol. For those who cannot get enough of this stuff, they also released a summary of revisions to the policy and a response to comments. On the whole, EEA took an appropriately moderate, incremental approach to revising the GHG policy. Indeed, it’s telling that the very first “change”… More
There has been a fair bit of evidence in recent weeks that getting a climate bill through Congress remains a difficult task. It is a sign of just how perfectly aligned the stars will need to be that the two recent problems for the bill were either completing unrelated to climate change or at best tangential.
First, as everyone knows, Senator Graham got annoyed that Senator Reid (locked in a tough reelection battle and needing Hispanic votes) suggested that he might move an immigration bill before the climate/energy bill. … More
Yesterday, Senator Lieberman (I -CT) confirmed that the climate bill that he, Senator Kerry (D-MA) and Senator Graham (R-SC) plan to announce next week will include preemption of state and federal initiatives, including EPA’s Clean Air Act authority. Leaving aside the potential in his statement for the bill to also preempt state renewable energy and efficiency programs, the goal of predictability and one nationwide cap-and-trade system is an approach that we endorsed a few weeks ago,… More
The Western Climate Initiative is scheduled to begin its cap-and-trade program in 2012. But as ClimateWire highlighted today, the number of states who will be ready and willing to participate in the program is quickly dwindling. Utah is the latest member of the seven-state, four-Canadian-province agreement to announce that it will not have the state authority needed to actually implement a cap-and-trade program in 2012. … More
As Senators Kerry, Lieberman, and Graham get ready to release their version of a climate bill, negotiations with moderate Democrats are heating up. Ten Democrats, apparently let by Sherrod Brown and Debbie Stabenow released a letter outlining what they call “key provisions for a manufacturing” package as part of an overall bill. Here are some highlights the Senators’ wish list:
Investments in clean energy manufacturing and low carbon industrial technologies.… More
Yesterday’s New York Times had a very interesting article regarding the use of advanced municipal waste combustor technology in Europe. As the article notes, such plants are relatively commonplace in Europe, whereas literally no new waste-to-energy plants are being built in the United States. Ian Bowles, our own Secretary of Energy and Environmental Affairs – and someone who has generally been a very successful promoter of renewable energy technology –… More
Last week, Judge Thomas Varlan handed the power plant sector a major win in the NSR enforcement arena, ruling that economizer and superheater replacement projects in 1988 at the TVA Bull Run plant were routine maintenance not subject to NSR/PSD regulations. Judge Varlan ruled for the TVA notwithstanding that:
The projects cost millions of dollars (but less than $10M each)
They extended the life of the plant by 20 years
The costs were identified as capital,… More
Now that the SEC has indicated that public companies should be considering climate change in evaluating financial risks, the pressing questions include what should be evaluated and how it should be reported. ASTM’s newly released standard on Financial Disclosures Attributed to Climate Change, E2718-10 may be just the thing. The standard, which has been under development for the last 2 years, provides guidance on processes for identifying,… More
Last year, EPA delayed implementation of the Bush EPA’s Aggregation Rule; at the time, I said that the rule was on life support. Earlier this week, EPA announced that it was formally proposing to revoke the aggregation rule. It looks as though the rule is now off life support and it’s time for the last rites.
The aggregation rule always seemed to me a piece of simple,… More
Just over a year ago, we noted the surprising, unanimous decision by the National Association of Insurance Commissioners (NAIC) to adopt rules requiring insurers to publicly disclose the impacts of climate change on their business decisions, to begin May 1, 2010. Well, not so fast. As Climate Wire reported, at Sunday’s NAIC meeting, a the commissioners voted 27-22 to make the disclosure rules optional for states to adopt,… More
EPA Finalizes Reconsideration of Johnson Memo: Confirms No Stationary Source GHG Regulation Before January 2011
EPA has finally issued its formal reconsideration of the Johnson Memo. As EPA had telegraphed, it confirms that a pollutant is only subject to PSD permitting requirements when that pollutant is subject to “a final nationwide rule [that] requires actual control of emissions of the pollutant.”
As EPA had also already indicated, the reconsideration states that PSD permitting requirements are triggered, not when a rule is signed or even on the effective date of the rule,… More
Last week, I noted that Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, suggested that, in the short run, the most significant pressure on inefficient energy sources would come, not from climate change legislation or from EPA GHG regulations, but instead from all of the conventional pollutant regulations that EPA expects to promulgate that will make use of coal much more expensive. While Gina was referring to a variety of air regulations,… More
Now that health care legislation has passed, the question is whether passage of the health care bill will unleash a cascade of other legislation, including a climate change bill, or whether Congress will be so exhausted and so polarized that nothing else will happen. I lean to the former position, but only time will tell. One positive indication was Senator Graham’s statement that, notwithstanding his views on the health care bill,… More
Last week, Judge John Darrah handed the government a defeat in a PSD/NSR enforcement action, when he ruled that the requirement to obtain permits under the PSD program prior to making major modifications was solely a pre-construction obligation and did not constitute a continuing violation.
United States v. Midwest Generation was one of the recent wave of government PSD/NSR actions, filed last summer. The problem with the government’s case was that Midwest Generation had purchased the six facilities at issue in the case from Commonwealth Edison in 1999 and all of the alleged changes but one were made prior to the purchase.… More
Despite the relatively low clearing prices in the Regional Greenhouse Gas Initiative’s (RGGI) seventh auction of CO2 credits on March 10th — $2.07 for 2009-2011 allowances, and the auction floor price of $1.86 for 2012-2014 allowances – cumulative RGGI proceeds to be used by the 10 participating states for renewable energy, energy efficiency and low-income energy assistance programs now total $582.3 million.
Traditional Pollutants Definitely Still Matter: EPA’s Draft Review Recommends More Stringent Particulate Standards
Last week, I posted about improvements in air quality since 1990. It’s a good thing air quality is improving, because, at the same time, the science keeps suggesting that ever lower pollutant levels pose risks to public health. The latest news was EPA’s draft review of the appropriate level at which to set the National Ambient Air Quality Standard for particulate matter.
EPA most recently revised the PM standard in 2006,… More
I know that despair is always more fashionable than optimism, but it is sometimes useful to remember that not everything is going to hell in a hand basket. Yesterday, EPA issued a press release announcing publication of its latest report on trends in air quality. The report, titled “Our Nation’s Air: Status and Trends Through 2008”, makes clear that, overall, air quality has gotten significantly better,… More
It’s difficult to keep up with the various moves in Congress, attempting either to advance climate change legislation or to preclude EPA climate change regulation. On the advance side, E&E Daily had a very helpful summary earlier this week on the various issues affecting those senators that will need to be brought on board to reach 60 yes votes in the Senate. The identified issues include, not surprisingly: (1) coal, (2) nuclear power,… More
Late last week, Senate and House Democrats piled more pressure on EPA’s efforts to regulate greenhouse gases under existing Clean Air Act authority. Senator Rockefeller and Representatives Rahall, Boucher, and Mohollan introduced companion House and Senate bills to preclude EPA regulation of stationary source GHG emissions for two years. Unlike the resolution sponsored by Senator Murkowski, which would simply overturn the endangerment finding and thus preclude all GHG regulation,… More
Seemingly just in time to lend support to the revived idea of a carbon tax that we noted on Monday, an Obama Administration inter-agency workgroup has released a report that attempts to do the critical math necessary to put a price tag on CO2 emissions.
The report sets out four dollar figures that represent the “social cost of carbon,” or the potential damages associated with not stopping the emissions of each incremental ton of CO2. … More
To date, the only circuit courts that have reviewed public nuisance claims related to climate change, the Second Circuit, in American Electric Power, and the Fifth Circuit, in Comer v. Murphy Oil, have ruled that such suits can proceed. However, last week the Court of Appeals for the Fifth Circuit decided to hear Comer v. Murphy Oil en banc,… More
A few weeks ago, I queried whether three pollutant legislation might be back in play, particularly given the current rough sledding for broad climate change legislation. Now, it certainly appears that way. The bill has been formally introduced. In addition to Alexander, there are now three other GOP co-sponsors (Gregg, Graham, and Snowe), not including Senator Lieberman, who is also a sponsor. There will be a hearing on March 4.… More
Since I did a post earlier today indicating the cap-and-trade legislation is unlikely to become law in the near term, it’s only fair that I also do a post on efforts by Senators Kerry, Graham, and Lieberman to resuscitate the legislation. The bill’s prospects are too uncertain to spend too much time on the details. In short, it would include a phased-in approach to regulation,… More
The uncertainty surrounding EPA regulation of GHG emissions under existing Clean Air Act authority was driven home for me last week when the same conference resulted in two diametrically opposed headlines in the trade press. Regarding a forum held by the International Emissions Trading Association, the Daily Environmental Reporter headline was “Existing Law Too Inflexible to Accommodate Market-Based Emissions Cuts, Executives Say.” Over at ClimateWire,… More
Yesterday, EPA Administrator Jackson issued a letter to Senator Jay Rockefeller responding to certain questions regarding EPA regulation of GHGs under existing Clean Air Act authority, including promulgation of the so-called “Tailoring Rule”, describing how stationary source regulation under the existing PSD program would be phased-in once GHGs are subject to regulation. Here are the highlights:
EPA still expects to promulgate the Tailoring Rule by April 2010.… More
The grand total is 16 separate challenges to EPA’s endangerment finding, according to Greenwire. I’m not one of those lawyers who regularly bash the legal profession. I still recall my law school professor, Henry Hansmann, stating that the role of lawyers is in fact to be transaction-cost minimizers, and I think that that is largely true. That being said, I am certainly wondering what all of this litigation is about.… More
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,… More
Earlier this week, the Southeastern Legal Foundation filed a petition for review of the EPA Endangerment Finding with the District of Columbia Court of Appeals. It’s not really surprising that someone filed suit, but the list of plaintiffs is interesting – though more for who is not on it than who is. There is not a single Fortune 500 company on the list of plaintiffs. Whether that speaks to the larger corporations doubting the merits of the challenge or simply making a strategic decision that it is not worth it to be associated with the litigation,… More
While Congress may be fiddling on climate legislation, Senators Carper and Alexander are attempting to put three pollutant legislation back on the congressional agenda. Yesterday, they introduced an aggressive three pollutant bill. Here are the highlights. The bill would:
Codify the CAIR program through 2011
Gradually reduce the cap on SO2 emission allowances to 1.5 million tons by 2018 – substantially more stringent than the CAIR would have imposed.… More
Until now, I haven’t posted about the climate change email brouhaha. I haven’t thought it mattered. I didn’t think it affected the underlying validity of climate change science and I still don’t. That science seems overwhelming to me.
However, I have concluded that the email issue matters. Yesterday’s ClimateWire reported that climate scientists had repeatedly ducked Freedom of Information Act requests, in ways that demonstrate an astounding degree of arrogance. Here’s the money quote from Phil Jones,… More
Given the stories this week of continuing efforts in Congress to preclude EPA from regulating GHGs under existing Clean Air Act authority, I couldn’t resist this headline.
The first story is that three House members, including two Democrats (House Agriculture Committee Chair Collin Peterson and Missouri Rep. Ike Skelton) have followed the lead of the Senate – where there are also Democratic sponsors –… More
As we noted a few weeks ago, EPA has proposed lowering the NAAQS to a range of from 0.060 ppm – 0.070 ppm. Earlier this week, EPA’s Clean Air Science Advisory Committee, or CASAC, met and endorsed EPA’s proposed range. Some CASAC members did express concern about EPA’s proposed secondary seasonal standard, intended to protect crops and forests. However, overall, the CASAC seal of approval is pretty much the end of this argument.… More
Last month, I noted with some trepidation that EPA Administrator Jackson had stated that "I don’t believe this is an either-or proposition," referring to the possibility that there could be both climate legislation and EPA regulation of GHGs under existing EPA authority. Today, it’s looking more like a neither-nor proposition.
First, with respect to the prospects for climate change legislation, Senator Gregg was quoted in ClimateWire as saying that “the chance of a global warming law passing this year was ‘zero to negative 10 percent.’" Whether Senator Gregg has the odds pegged exactly right,… More
Last week, I reported on a decision by EPA Administrator Jackson, in an appeal from a permit issued by the Kentucky Division of Air Quality, to the effect that the developer of an Integrated Gasification Combined Cycle (IGCC) plant, which converts coal to gas for combustion, had to consider use of natural gas as BACT, because the plant already had plans to use natural gas as a startup and backup fuel.… More
Last April, I noted that the one certainty associated with EPA regulation of greenhouse gases under existing Clean Air Act authority was that there would be unintended consequences. If anyone doubted that this would be so, they might want to read some of the comments submitted to EPA in connection with EPA’s proposed Tailoring Rule, which would exempt facilities emitting less than 25,000 tons per year of CO2e from the PSD provisions of the Clean Air Act after CO2e becomes a regulated pollutant under the CAA.… More
As I noted on Friday, EPA has proposed to revise the NAAQS for ozone to a range of from 0.060-0.070 ppm, a reduction from the 0.075 ppm standard promulgated in 2008 by the Bush administration. EPA’s analysis of the available date indicates that 650 counties – out of 675 counties which have ozone monitors – would be in violation of a 0.060 ppm standard. For those counting, that’s more than 96% of all counties in nonattainment. Even if the standard were set at 0.070 ppm,… More
On Wednesday, EPA released a proposal to reduce the primary National Ambient Air Quality Standard for ground-level ozone from the 0.075 ppm standard set by the Bush administration in 2008 to a range of from 0.060-0.070 ppm. EPA also proposed to set a secondary standard intended to protect sensitive ecological areas, such as forests and parks.
As almost everyone knows, the 2008 standard was,… More
Shortly before the holidays, EPA Administrator Jackson issued an Order in response to a challenge to a combined Title V / PSD permit issued by the Kentucky Division for Air Quality to an Integrated Gasification Combined Cycle, or IGCC, plant. The Order upheld the challenge, in part, on the ground that neither the permittee nor KDAQ had adequately justified why the BACT analysis for the facility did not include consideration of full-time use of natural gas notwithstanding that the plant is an IGCC facility. … More
EPA announced yesterday that it had reached a settlement with Duke Energy to address allegations of New Source Review violations at Duke’s Gallagher coal-fired generating plant in New Albany, Indiana. A jury had already found Duke liable for certain NSR violations at the plant. The settlement obviates the need for a remedy trial, which had been scheduled for early 2010.
As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting.
Yesterday, Senators Kerry, Graham, and Lieberman sent to President Obama a “framework” for Senate climate change legislation. The framework is short on details and does not contain many surprises. For example, it proposes “near term” – near team is undefined – reductions of 17% from 2005 levels and “long-term” – also undefined – reductions of 80%.
The framework is nonetheless noteworthy, particularly for its inclusion of strong support for both the coal and nuclear industries. Senator Kerry was must have loved writing “Additional nuclear power is an essential component of our strategy to reduce greenhouse gas emissions.” And this: “We will commit significant resources to the rapid development and deployment of clean coal technology.”… More
On Tuesday, District Judge Roger Titus issued an injunction against the construction of the Beech Ridge Energy wind project – 122 wind turbines along 23 miles of Appalachian ridgelines – unless the project can obtain an incidental take permit, or ITP, under the Endangered Species Act. Judge Titus concluded, after a four-day trial, that operation of the turbines would cause a “take” of the endangered Indiana Bat.… More
As anyone not hiding under a rock has by now probably realized, EPA officially announced Monday that it has concluded that GHG from human activity threaten public health and the environment. Since the announcement was not exactly a surprise, the question remains what impact it will have.
In the short run, the timing certainly seems intended to coincide with the Copenhagen talks and help to demonstrate to other nations that the U.S.… More
The states participating in the Regional Greenhouse Gas Initiative (RGGI) announced the results of their 6th quarterly auction, held on December 2nd, which brought in the lowest prices for carbon dioxide (CO2) allowances yet. Wednesday’s auction also marks the first time that RGGI allowances offered for sale outnumbered demand. Only 1.6 million of the roughly 2.1 million allowances for the 2012 vintage sold at RGGI’s required price floor of $1.86.… More
Another Rant Against NSR: Why the Continued Operation of Old Power Plants Is Bad News for GHG Regulation Under the Current Clean Air Act
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,… More
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.… More
Boston Celtics’ fans know the phrase “fiddlin’ and diddlin.” Well, the Senate continues to fiddle and diddle over climate change legislation. Those who have worked with Gina McCarthy, current EPA air chief, know that she has probably never fiddled or diddled in her life, and I certainly don’t expect her to do so with respect to GHG regulation under existing Clean Air Act authority in the absence of comprehensive legislation. … More
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,… More
Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.
The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California,… More
A few weeks ago, we noted EPA’s release of its long-awaited “Tailoring Rule,” specifying how EPA would apply its PSD program under existing Clean Air Act authority to greenhouse gases, once they definitively become a regulated pollutant under the CAA some time next spring. Today, the proposed rule was published in the Federal Register. Comments are due December 28. More
The Chairman’s Mark of the Clean Energy Jobs and American Power Act (S. 1733), released late Friday night by Senate Environment & Public Works Committee Chair Barbara Boxer, fills in some of the details left out of the earlier-introduced Boxer-Kerry bill, notably identifying which sectors will get CO2 allowances allocated to them for free. The bill largely follows the lead of the House-passed ACES,… More
The U.S. Securities and Exchange Commission is re-examining its rules regarding whether companies should or must disclose climate change related risks. According to an article in ClimateWire, revisions could be issued by the end of October. On Friday, SEC Commissioner Elisse Walter said that SEC staff are working on preparing recommendations, and two options are still on the table. One option is a rule-making that would set specific rules for disclosing climate risks.… More
Two more decisions were released last week concerning whether nuisance claims could be brought with respect to harm alleged to have resulted from private conduct contributing to climate change. First, in Village of Kivalina v. ExxonMobil Corporation, the District Court dismissed nuisance claims. Second, in Comer v. Murphy Oil, the Fifth Circuit Court of Appeals reversed a District Court dismissal of nuisance claims related to damage resulting from Hurricane Katrina.… More
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.… More
On Thursday, EPA issued its long-awaited proposed rule describing how thresholds would be set for regulation of GHG sources under the existing Clean Air Act PSD authority. Having waded through the 416-page proposal, I’m torn between the appropriate Shakespeare quotes to describe it: “Much ado about nothing” or “Methinks thou dost protest too much.”
First, notwithstanding its length, the proposal is quite limited in scope. … More
After a number of stories indicating that the prospects for climate change legislation were dimming for 2009, the convergence of a number of factors suggests that legislation may still be possible.
Yesterday, Senator Boxer and Senator Kerry released a draft of climate change legislation. This doesn’t mean that Senate passage is imminent. The bill has not been formally introduced and, like the early drafts of the Waxman-Markey bill,… More
EPA released its final version of the Mandatory Greenhouse Gas Reporting Rule today. The Rule (which we blogged about in its draft form here) will require large emitters of greenhouse gases to begin collecting emissions data on January 1, 2010 and file their first self-certified reports in March 2011. The EPA will then verify the data, as in other Clean Air Act programs. The new program will cover approximately 85% of the nation’s greenhouse gas emissions and apply to roughly 10,000 facilities,… More
Another Nuisance For the Generating Industry: The 2nd Circuit Reinstates the GHG Public Nuisance Suit
On Monday, the Court of Appeals for the 2nd Circuit finally issued a decision in Connecticut v. American Electric Power Company, reversing the District Court decision which had dismissed this public nuisance law suit against six large generating companies. The decision is notable in a number of different respects and may have far-reaching implications
On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly surprising, given the ongoing study and given that EPA has not revised the guidelines since 1982. Indeed,… More
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. … More
The silence from Congress recently concerning climate change legislation has been deafening. The continued health care debate does not bode well for early passage of the Waxman-Markey bill. Meanwhile, EPA is not sitting on its hands.
Daily Environment Report noted last week that EPA has sent to the OMB a proposal to reverse the Agency’s policy that CO2 is not a pollutant subject to the PSD provisions of the Clean Air Act. Also last week,… More
The Regional Greenhouse Gas Initiative (RGGI) has released the clearing prices from its 5th quarterly auction of CO2 allowances, held on September 9, 2009. Prices for the 28.4 million 2009 vintage allowances sold fell sharply from the June auction’s clearing price of $3.23 to $2.19, and the 2.1 million 2012 vintage allowances sold for only $1.87, just one cent above the market floor of $1.86, and well below the $3.05 that they earned at the March 2009 auction,… More
Although we had earlier predicted that comprehensive climate legislation could reach a floor vote in the Senate as early as October, that deadline is likely to move to November or later. As reported by BNA this morning, the lead democratic authors of the bill, Senators Boxer and Kerry, announced yesterday that they need more time to craft the Senate bill and will put off introduction until the end of September. … More
In another sign that the NSR program is alive and well under the Obama administration, the United States (together with the State of Illinois, filed suit Thursday against Midwest Generation, alleging violations of NSR requirements at six coal-fired power plants. Although the action is not too surprising, given that the Bush EPA had issued a notice of violation to Midwest Generation in 2007, it remains noteworthy. Each new prosecution serves to remind generators that failure to comply with NSR rules can lead to significant costs.… More
According to an article by BNA published this morning, EPA may soon act to apply the prevention of significant deterioration (PSD) provisions of the Clean Air Act to facilities that emit more than 25,000 tons of carbon dioxide annually. Presumably, EPA’s action is either an effort to exert leverage on Congress to pass pending climate change legislation or to ensure that GHG are regulated in the event that legislation doesn’t pass —… More
EPA announced today that it had reached yet another six-figure penalty settlement in an anti-idling case. This time, the penalty was $650,000. This is one of the larger penalties EPA has obtained in this area. There appear to be several reasons for the magnitude of the penalty. First, the defendant, Paul Revere Transportation, LLC, was apparently a recidivist. It has been the subject of an anti-idling enforcement action in 2003.… More
EPA announced this week that it was granting a petition for reconsideration of the final National Ambient Air Quality Standards for lead, specifically the portion requiring monitoring of lead emissions near certain sources. The petition was brought in January by a number of environmental organizations and groups concerned about childhood lead poisoning.
The existing lead monitoring requirements were finalized in October 2008, at the same time that EPA tightened the national air quality standards for lead for the first time in 30 years.… More
Comprehensive Energy and Climate legislation is moving along through the Senate, and could come to a floor vote by October. Six Senate committees – Agriculture, Commerce, Energy & Natural Resources, Environment & Public Works, Finance and Foreign Relations — have jurisdiction over portions of the bill, a tactic that Senate leadership hopes will give a number of influential, but as yet undecided, Senators input and a stake in the bill’s passage.… More
Last Friday, in NRDC v. EPA, the Court of Appeals for the D.C. Circuit struck down parts of EPA’s Phase 2 rule for achieving compliance with the ozone NAAQS. The most important part of the ruling was the Court’s conclusion that EPA could not rely on compliance with the NOx SIP Call to satisfy the requirement that sources in an ozone nonattainment area demonstrate achievement of reasonably available control technology,… More
Earlier this week, the Georgia Court of Appeals reversed a decision of the Superior Court in Georgia that would have required Longleaf Energy Associates, developer of a coal-fired power plant, to perform a BACT analysis of CO2 emissions control technologies in order to obtain an air quality permit for construction of the plant. The case is a reprise of the Deseret Power case regarding a coal-fired plant in Utah.… More
The Massachusetts Department of Environmental Protection (DEP) yesterday published a final amendment to the first set of Global Warming Solutions Act regulations, 310 CMR 7.71. These regulations set a baseline for Massachusetts’ 1990 emissions and create a reporting system that will track emissions going forward, providing a framework for economy-wide reductions of 10% to 25% by 2020 and 80% by 2050. The regulations are the first phase of implementation of the Global Warming Solutions Act,… More
The House of Representatives narrowly passed H.R. 2454, the American Clean Energy and Security Act of 2009 by a vote of 219-212 on Friday, June 26. The bill, the first piece of major legislation on global warming that has passed either house of Congress, is 1,428 pages long, and includes 5 titles covering everything from renewable energy and efficiency to adaptation and transitioning to a clean energy economy. … More
In the category of dog bites man, EPA today announced it was granting the State of California a waiver that will allow California to regulate greenhouse gas emissions from motor vehicles. The granting of the waiver was expected after Obama’s election and became pretty much inevitable after the administration announced in February that it was reconsidering the waiver request.
Substantively, it is not clear that the waiver matters that much,… More
While some of my colleagues are laboring in the climate change vineyards (and we should have posts soon summarizing the House bill), I thought I would note another interesting enforcement decision issued this week. United States v. Oliver is, in some respects, a run of the mill decision. A mom-and-pop medical waste incinerator (the adjective is the court’s not mine; it does give one pause) failed for several years to comply with EPA regulations governing such facilities.… More
At the fourth auction of CO2 allowances under the Regional Greenhouse Gas Initiative (RGGI) on June 17, participation was certified as robust by market monitor Potomac Economics, but auction prices decreased. Last week’s clearing price for 2009 vintage CO2 allowances was $3.23 per allowance, only slightly above the clearing price of $3.07 at RGGI’s initial auction in September 2008, and below March’s clearing price of $3.51. The 2.1 million 2012 vintage allowances offered for sale in last week’s action sold for $2.06,… More
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.
According to a quote from House Energy and Commerce Chairman Henry Waxman in an E&E article this morning, the Waxman-Markey bill could reach a floor vote inside of 3 weeks. Speaker Pelosi had set a deadline of next Friday, June 19, for the 8 House Committees still evaluating HR 2454 to conclude their review, but has not indicated when Democrats will bring the legislation to the House floor. Waxman said yesterday that he wants debate to begin on June 22 and the bill to go to a vote before the July Fourth recess —… More
In Congressional testimony last month, EPA Administrator Lisa Jackson apparently told Congress that amendments to the CAA may be necessary in order to ensure that any revised CAIR rule issued by EPA would be safe from legal challenge. The testimony is not really a surprise. Anyone reading the decision striking down the original CAIR rule would understand that the Court had concluded that the cap-and-trade program promulgated under CAIR was not authorized by the CAA.… More
Last week, Judge Larry McKinney issued an order requiring to shut down three coal-fired generating units at its Wabash Station facility by no later than September 30, 2009. The decision actually struck me as a thoughtful analysis of injunctive relief issues in a situation where a violation of NSR regulations had already been proven. Although the decision has gotten most press for the order shutting down the units, it covers a number of issues important to injunctive relief situations,… More
For those of you looking for a cogent and concise economic analysis of the current debate regarding the distribution of allowances in the Waxman-Markey bill, take a look at this post from Rob Stavins. Rob makes several important points, but I think that two are most fundamental. First, with some caveats, how allowances are distributed does not affect the environmental results attained by the program. Second, the allocation proposed in the Waxman-Markey bill is by no means a “give-away”… More
Earlier this week, the jury reached a verdict in the Cinergy – now Duke Energy – NSR retrial. The short version is simple:
Condensor retubine – no need to go through NSR
Pulverizor replacement – requires NSR
I don’t know all of the details of the case. For example, I don’t know if the pulverizer capacity was expanded when they were replaced. If any readers know the details and want to share them,… More
As highlighted in yesterday’s issue of Greenwire, one of the controversial aspects of the American Clean Energy and Security Act (ACES) passed by the House Energy & Commerce Committee last night is that 35% of the allocated allowances created in the cap-and-trade program will go for free to the electric power industry. 30% will go to Local Distribution Companies, or LDCs, traditional regulated utilities who sell power directly to consumers,… More
A Late Entry Into the Climate Change Sweepstakes: The Midwestern Greenhouse Gas Accord Cap-and-Tax Approach
Apparently in an effort to demonstrate to Congress that coal states also support greenhouse gas regulation, the Midwestern Greenhouse Gas Reduction Accord last week released draft design recommendations for a GHG program. Several facets of this announcement are interesting:
- The Waxman-Markey bill would basically preclude the MGGRA from implementing its program.
- If the point of the effort is to demonstrate to Congress that coal states indeed do support GHG regulation,…
Congressmen Waxman and Markey today released their proposal for allocating allowances under a cap-and-trade program. At least 15 different categories of entities will receive a piece of the allowance pie. Here’s the list:
Local Distribution Companies – 30%
Merchant Coal and PPAs – 5%
Natural Gas Distribution Companies – 9%
States (for home heating oil users) –… More
Are Representatives Waxman and Markey near settling on language that will get a majority in Committee for the climate change bill? The tenor today was significantly more positive than in the past few weeks. An update seemed worthwhile, given the number of specific provisions on which agreement has apparently been reached.
- The initial CO2e reduction goal will be 17% over 2005 levels by 2020. …
It seems that news on the behind-the-scenes dance in the House in an effort to bring major energy and climate change legislation to a floor vote by Memorial Day emerges every few hours, changing pundits’ predictions and analysis. Even so, this morning’s article by E&E contained enough interesting tidbits to warrant highlighting it here.
In short, Energy & Commerce Chairman Henry Waxman has set his goal to produce an amended draft of ACES this week,… More
Based on the current pace of developments, weekly updates on climate change legislation seem to be about the right frequency. This week’s forecast is bullish on more free allowances.
The news this week has centered on the delay in scheduling a mark-up on the Waxman Markey bill in the house. It has been widely reported that the mark-up has been delayed because the sponsors don’t yet have enough votes to pass the bill in committee. I wouldn’t read too much into the difficulty at this point. It doesn’t mean that a bill won’t get out of committee or won’t get passed. It just means that these are difficult issues,… More
For those of you who aren’t convinced that Senator Specter’s defection to the Democrats will be the savior of cap and trade legislation, and who are concerned by Senator Durbin’s recent pronouncement that, at this point, there are not 60 votes in the Senate, the question as to how EPA might regulate greenhouse gases under existing authority has taken on greater importance.
The traditional assumption,… More
We have previously posted about EPA’s efforts to roll back regulatory changes made by the Bush Administration, particularly with respect to the NSR program. There is no question that the roll-back continues. This week, EPA announced it would review three separate NSR rules promulgated by the Bush administration. These include:
The “reasonable possibility” rule, which identified when major sources must keep records even if a contemplated change is not expected to trigger NSR review
The fugitive emissions rule,… More
As I noted a couple of weeks ago, Representative John McHugh (R-NY) has introduced legislation that would require significant reductions in emissions of SO2 and NOx, and mercury from power plants. Now, Senators Carper (D-Del.) and Alexander (R-Tenn.) have announced that they will be introducing their own three-pollutant legislation in the Senate. Since they have not yet introduced a bill, we’ll all just have to imagine the specifics for now,… More
I’ve made a conscious decision not to blog about every twist and turn in the climate change legislation debate. While a blogger can’t quite take a “wake me when it’s over” position, I think that periodic updates are going to be more than sufficient. That being said, in the wake of EPA’s issuance of its endangerment finding last week, a brief update seems appropriate.
This morning, EPA issued a proposed finding that greenhouse gasses contribute to air pollution and may endanger public health or welfare. The proposed finding comes almost exactly two years after the Supreme Court, in Massachusetts v. EPA, ordered the agency to examine whether emissions linked to climate change should be curbed under the Clean Air Act, and marks a major shift in the federal government’s approach to global warming.… More
Now that the initial euphoria following the introduction of the Waxman-Markey climate change bill has passed, this past week may have reminded supporters of climate change legislation just how difficult it will be and what sort of compromises may be necessary to get it done. First, Greenwire reported again on the difficulty that senators and representatives from coal states will have supporting climate legislation that would increase electricity rates.… More
As we mentioned yesterday, the discussion draft of the Waxman-Markey “American Clean Energy and Security Act of 2009” which was released on Tuesday is notable both for what it includes and the significant portions it leaves to be decided at a later date.
In summary, the bill contains four titles:
- a “clean energy” title, which promotes renewable energy through a portfolio standard of 6% in 2012 rising to 25% by 2025,…
Harking back to legislative efforts of a few years ago, Representative John McHugh (R-NY) yesterday introduced legislation that would require significant reductions in emissions of SO2 and NOx, and mercury from power plants. The highlights of the bill include the following:
- No later than two years from enactment, EPA must promulgate regulations requiring that powerplants:
- reduce SO2 emissions by 75% over the Phase II levels contained in the current CAA acid rain program
- reduce NOx emissions by 75% over 1997 levels
- Even aside from the above-described reductions,…
I finally found time to review the 648-page “discussion draft” of the “American Clean Energy and Security Act of 2009” released by Representatives Waxman and Markey this week. It is fair to way that, though release of the draft may be an important way-station on the road to a climate change bill, there remains a lot of work to do. While the draft includes some important markers that are likely to set boundaries on what might be included in the final bill,… More
The results of EPA’s annual auction of sulfur dioxide (SO2) allowances under the acid rain program provide empirical support for a proposition that the regulated community repeatedly advances – certainty is critical to the success of complex regulatory regimes. Prices for 2009 allowances fell from last year’s average of $380/ton to $70/ton, or more than 80%. Prices in the 7 year advance auction fell even more dramatically, from $136/ton in 2008 to $6.65/ton,… More
RGGI, Inc. the operators of the Regional Greenhouse Gas Initiative (RGGI) today announced the results of its third auction of CO2 allowances, held on March 18, 2009. The auction offered allowances from all ten states participating in RGGI — Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.
In connection with the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB, I noted my hope that the Obama administration would be a Nixon in China moment for regulatory reform. Given the administration’s aggressive early steps to combat global warming and to roll back some of the more extreme moves by the Bush EPA, the new administration could, if it chooses,… More
An update to a development we noted a few weeks ago — as reported by Climate Wire today, at the national meeting of the National Association of Insurance Commissioners (NAIC) yesterday, regulatory officials from 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) unanimously voted in favor of rules requiring insurers to disclose the impacts of climate change on their business decisions. … More
Greenwire reported yesterday that EPA plans to issue its endangerment finding on emissions of greenhouses gases, in response to Massachusetts v. EPA, by the end of April. Greenwire also released EPA’s internal presentation regarding its recommendation to the Administrator.
Although EPA’s anticipated decision is not a surprise, it is still noteworthy. Among the highlights:
- The finding will conclude that greenhouse gas emissions endanger public health (the proposed endangerment finding that the Bush administration EPA had prepared,…
The Environmental Protection Agency (EPA) today proposed regulations which create the first nationwide system for reporting emissions of CO2 and other greenhouse gases emitted by major sources in the US. The proposed regulations are promulgated pursuant to the FY2008 Consolidated Appropriations Act which was signed into law in December 2007, and instructs the EPA to require mandatory reporting of greenhouse gas emissions in all sectors of the economy.… More
As the New York Times reported on Friday, New York Governor David Paterson may increase the number of carbon allowances that New York gives to power plants for free, creating a significant policy departure from New York’s earlier approach to RGGI. New York, together with seven other RGGI states, had earlier committed to auction nearly 100% of its allowances. As such, New York gave away only a small portion of its allowances this year (1.5 million out of 62 million) through a program designed to lessen the impact of RGGI on the price of electricity. Paterson’s proposed adjustment would increase that number four-fold,… More
As we noted last week, President Obama’s budget includes revenue from auctioning 100% of allowances under a cap-and-trade system. ClimateWire today reports two competing versions of the prospects for a 100% auction approach. First, the Southern Alliance for Clean Energy signed up a number of economists, including Franklin Fisher of MIT, in support of the President’s plan to auction all allowances from the get-go. Part of the argument reflects environmental justice concerns,… More
Obama Budget Proposal Includes Revenue From Auctioning 100% of CO2 Allowances Under a Cap and Trade Plan
In the budget proposal that President Obama will send to Congress today, the administration has included revenue from auctions of 100% of allowances that will be issued as part of an economy-wide, mandatory cap-and-trade program. It’s a lot of money and the administration has big plans for it.
As highlighted in the President’s joint address to Congress on Tuesday night, the cap-and-trade program is expected to bring in billions of dollars per year.… More
The batting average of the Bush administration EPA in appeals of its regulatory proposals may now have dropped below the proverbial Mendoza line. This week, the Court of Appeals for the District of Columbia remanded a substantial part of EPA’s particulate rule. That the Bush administration could achieve results where the Mendoza line is even a close metaphor is a testament to just how low its stock has fallen in the courts.… More
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,… More
As Congress considers approaches to climate change legislation, with pragmatists seeming generally to support a cap and trade system, while purists support a carbon tax, the Commonwealth of Massachusetts has now weighed in with a new approach: How about both?
Although Massachusetts dithered a bit at the end of the Romney administration, it rejoined the Regional Greenhouse Gas Emission under Governor Patrick in time to participate in the first auction under the RGGI cap and trade program. Last week,… More
The next Bush-era rule to be tossed overboard may be a big one, namely EPA’s hands-off stance on regulation of CO2 for PSD purposes. EPA Administrator Lisa Jackson said today in a letter to the Sierra Club that the agency would grant the group’s petition seeking reconsideration of former Administrator Johnson’s December 18th memo which described why EPA should not regulate CO2 emissions from new coal-fired plants. Although EPA did not stay the effectiveness of the Johnson memo,… More
We posted recently about the revival of EPA’s NSR enforcement program. Now, yet another shoe has dropped. The Center for Biological Diversity has announced the creation of the Climate Law Institute, the purpose of which is to use citizen law suits under existing laws to advance regulations intended to address climate change. The press release states that the Institute has $17 million in funding with which to pursue its mission.… More
While a lot of attention has been paid to whether EPA would reverse the Bush EPA decision denying California’s petition to regulate greenhouse gas emissions from mobile sources, it is now clear even outside the climate change arena that life at EPA is going to be substantially different under the current administration. As if evidence were really needed for that proposition, EPA announced this week that it was putting on hold the NSR aggregation rule that EPA had promulgated on January 15,… More
Coal has taken its lumps this week. Today, legislation was introduced in Congress to require EPA to promulgate MACT standards for mercury emissions from coal-fired power plants within one year of enactment of the legislation.
There has been some suggestion that the legislation was filed simply to prod EPA to drop its appeal of the decision by the D.C. Circuit Court of Appeals rejecting EPA’s Clean Air Mercury Rule (CAMR),… More
In addition to our post yesterday and the items highlighted in the New York Times Green.Inc blog on the difficulties facing new and existing coal-fired power plants this week, the Environmental Protection Agency and the Department of Justice have launched what they call a new national crackdown targeting coal-fired plants that violate the Clean Air Act.
The EPA and DOJ announced yesterday that Kentucky Utilities (KU), a coal-fired electric utility, has agreed to spend approximately $135 million on pollution controls to resolve violations of the Clean Air Act New Source Review program. KU will also pay a $1.4 million civil penalty plus $3 million in implementing supplemental environmental projects, or SEPs. Finally, KU will also surrender over 50,000 SO2 allowances shortly after entry of the consent decree, and annually surrender any excess NOx allowances resulting from the installation of pollution control equipment. … More
While Congress considers climate change regulations, and states pursue regional cap and trade plans, it becomes apparent that the number of different ways to regulate carbon emissions is limited only by the creativity of those doing the regulating. Last week, the Minnesota Public Utilities Commission (PUC) issued a certificate of need for the construction of transmission lines necessary to carry power from a new coal-fired plant, known as Big Stone II,… More
Sometimes it seems as though the days for coal are short. With a new administration that seems truly committed to addressing climate change, it can be difficult to envision a long-run future.
Other days, coal, like Citigroup, seems too big to fail. Today, I’m in the latter camp. Yesterday, Zurich Financial Group announced that it would provide insurance to cover risks associated with carbon capture and sequestration (CCS) projects. It’s one thing for Congress,… More
In a decision that could have significant impact on states’ efforts to limit cross-border pollution, Judge Lacy Thornburg of the District Court for the Western District of North Carolina issued an affirmative injunction against the TVA this week, requiring it to install pollution control equipment at its facilities located nearest to North Carolina and imposing specific emissions limits from those facilities. The basis for the injunction was a finding,… More
RGGI, Inc. announced today that its third auction of CO2 allowances will be held on March 18, 2009, and will offer allowances from all ten states participating in RGGI – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont. The sealed bid format and the reserve price of $1.86 remain the same as the previous two auctions, but one big change is in the works.… More
It’s now de rigueur to say that there is no conflict between a healthy economy and a healthy environment. President-elect Obama said so himself as recently as December 15, when he introduced members of his environmental and energy team. Certainly, in a perfect world, where information is free and everyone agrees on the economic value to be placed on protecting environmental interests, that would be true as a matter of definition.… More
As the sun sets on the Bush administration, it is at least maintaining its seemingly unmatched record for turning the notion of judicial deference to administrative action on its head, as the D.C. Circuit has rejected yet one more EPA Clean Air Act rule. This time, the Court struck down EPA’s rule exempting startups, shutdowns, and malfunctions (SSM) from emissions standards under § 112 of the CAA.
As with some of EPA’s other judicial defeats,… More
The Union of Concerned Scientists (UCS) released a report on Friday that concludes that the cuts in emissions from power plants within the Regional Greenhouse Gas Initiative (RGGI) region may be compromised by power generated outside the RGGI region and imported into the region. This problem is called "leakage" in carbon-capping jargon, and it is a problem for which RGGI, Inc. has never found a satisfying solution.
The UCS report highlights that although RGGI caps the emissions of power plants in 10 Northeastern states,… More
Following briefing from the parties, the D.C. Circuit Court of Appeals today withdrew its vacatur of EPA’s Clean Air Interstate Rule. While the decision striking down the rule stands, the Court determined that keeping CAIR in effect while EPA prepares a replacement rule “would at least temporarily preserve the environmental values covered by CAIR.”
EPA rejected a request by the industry plaintiffs to impose a deadline on EPA for issuing the replacement rule,… More
As we previously noted, the recent Environmental Appeals Board decision in the Deseret Power matter raised the possibility that CO2 and other greenhouse gases need to be considered in PSD reviews. On December 18, EPA Administrator Stephen Johnson issued an interpretation which concluded that GHG still do not need to be considered in PSD reviews.
RGGI, Inc., the operators of the Regional Greenhouse Gas Initiative (RGGI) announced today that the second auction has proceeded smoothly and as planned. All 31,505,898 allowances offered for sale at Auction 2 on December 17 were purchased at a clearing price of $3.38 per allowance. This price is above the first RGGI auction’s clearing price of $3.07, and in line with recent prices for RGGI futures on the Chicago Climate Futures Exchange,… More
Massachusetts and California seem to be neck-and-neck in the race to be the first state to cap greenhouse gases economy-wide.
Massachusetts issued emergency regulations last week which create the first phase of a mandatory reporting program, thus taking the title of first state to implement the beginnings of an economy-wide cap and trade plan. The regulations commence January 1, 2009, so Massachusetts facilities that might need to report should read Foley Hoag’s Client Alert on the new regulations very soon.… More
On the eve of the second RGGI auction, it is reasonable to ask what the trend is in CO2 emissions in the RGGI states. Environment Northeast just issued a report which seeks to answer that question. According to ENE, which utilized data from EPA and the RGGI states, CO2 emissions in the RGGI states through the third quarter of 2008 are trending 16 percent below the RGGI cap.… More
As we have noted, there have been a number of arguments regarding the implications of a decision by EPA to utilize current Clean Air Act authority to regulate greenhouse gases. The Chamber of Commerce has been in the “sky is falling” camp. Nonetheless, environmentalists are already pressing President-elect Obama to regulate greenhouse gases under the CAA, without waiting for what could be a lengthy legislative process.
On the better late than never front, I finally got around to reviewing the still relatively recent decision in United States v. Cinergy Corp. regarding the scope of injunctive relief available with respect to violations of the Clean Air Act’s New Source Review, or NSR, provisions. Although the decision was issued in mid-October, its significance is great enough to mention here.
As most readers here will know,… More
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.
In the struggle to control greenhouse gases, one debate has been which should come first, innovation or regulation. The Bush administration, of course, came down firmly on the side of innovation. It invested money – though many argued, not enough – in developing energy efficient technologies or means of controlling greenhouse gas emissions, but it fought to end against regulation of CO2 as a pollutant.
From a theoretical point of view,… More
In Massachusetts v. EPA, the Supreme Court concluded that greenhouse gases, including CO2, are “air pollutants,” the it left (barely) open the question whether CO2 is “subject to regulation” under the Clean Air Act (“CAA”).
Following Massachusetts v. EPA, there have been a number of cases in which advocates of climate change regulation have sought to require EPA to regulate CO2 as a pollutant. One of those cases,… More
Can a party found liable of violating the Clean Air Act’s New Source Review provisions be required to reduce future pollution more to mitigate emissions caused by past violations? According to a recent U.S. District Court decision, maybe.
In U.S. v. Cinergy Corp., S.D. Ind., No. 99-1693, decided October 14, 2008, the first court to rule on whether retroactive, as opposed to prospective relief, is available under Section 113 of the Clean Air Act found that the court does have the authority to grant such relief. Although the court stopped short of ordering this relief (procedurally,… More
Opening yet another front in the effort to force EPA to take more aggressive action to combat global warming, the Environmental Defense Fund recently announced its intent to sue EPA for its failure to update emissions standards with respect to emissions of methane from landfills. As EDF has alleged, Section 111 of the Clean Air Act requires that EPA update its New Source Performance Standards every eight years.… More
Has the D.C. Circuit had second thoughts about its decision to vacate EPA’s Clean Air Interstate Rule? As we noted last month, after Congress pretty much threw up its hands at efforts to salvage some part of CAIR, EPA, states and private stakeholder were left wondering how to proceed. Now, the Court may have provided a life-line to CAIR. In surprise Order issued last week,… More
It’s not really a surprise, but the nation’s financial woes have begun to affect state government. On Wednesday, Governor Deval Patrick announced a set of wide-ranging budget cuts, intended to save more than $1 Billion. The cuts were made necessary by a steep drop in tax revenue and predictions that the drop will continue for the rest of the state fiscal year. The Governor’s stated intention is to avoid cuts in local aid and education funding and this announcement did avoid any cuts in these areas.… More
The operators of the Regional Greenhouse Gas Initiative, or RGGI, announced today that all of the 12,565,387 CO2 allowances offered for sale at the first RGGI auction on September 25 have been purchased at a relatively low price of $3.07 per allowance. This is only marginally above the auction reserve price of $1.86 per allowance, and below recent prices on the Chicago Climate Futures Exchange.
RGGI did not announce the names of the winning bidders,… More
Since the Court of Appeals for the District of Columbia vacated EPA’s Clean Air Interstate Rule in its entirety, EPA and Congress have been working on a variety of fixes. As we recently noted, Congressional Democrats recently put together a plan to enact CAIR’s Phase I SO2 and NOx limits. Enacting those limits would result in emissions reductions of approximately 45% of SO2 and 50% for NOx.… More
There was a time when EPA was almost uniformly successful in defending its regulations in the courts. EPA would note the deference provided to agency decision-making under Chevron U.S.A. v. NRDC, remind the court of its expertise in interpreting some very complicated statutes, and the case would essentially be over. Not any more.
In recent years, as the Bush administration has embarked on some quite ambitious regulatory reform efforts,… More
EPA’s enforcement efforts under the New Source Review, or NSR, program have had more twists and turns during the past ten years than it is possible to catalogue, at least in a blog post short enough to avoid crashing the server. In brief, EPA began under the Clinton administration an ambitious effort to bring NSR cases against numerous power plants. Those efforts have had substantial, though not perfect, success in court.… More
EPA has publicly taken the position that the current Clean Air Act is ill-suited to regulation of CO2 as a pollutant. In an advance notice of proposed rulemaking. EPA stated that regulation of greenhouse gases “could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land.” (Of course, proponents of regulation of greenhouse gases under the CAA might say that that is precisely what is needed to address the problem of global climate change.)
Given EPA’s stated reluctance to regulate CO2 and other greenhouse gases under the CAA,… More
Since the Supreme Court issued its decision in Massachusetts v. EPA, Congress, EPA, state regulators, environmentalists, and industry groups have been trying to determine what it would mean to regulate CO2 under the Clean Air Act. While both presidential candidates are on record as supporting some kind of climate change legislation, the currently proposed legislation is extraordinarily complex and there are certainly no guarantees that legislation will in fact be enacted any time soon.… More
In the days following the decision by the Court of Appeals for the District of Columbia to vacate EPA’s Clean Air Interstate Rule – CAIR – regulators, industry, and environmentalists have been attempting to answer one fairly basic – and quite critical – question. What now? Although a variety of parties had challenged various aspects of CAIR, it seems that no one was quite prepared for the decision by the Court of appeals that the entire rule had to be vacated,… More