Category Archives: Climate Change

Governor Baker’s Executive Order on Change: Good News; Still Work To Be Done By MassDEP

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  tide-surgeEO 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.…
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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 Strategyoffshore-windIt’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.…
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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 biomassfrom such redefinition of the source. … More

The Social Cost of Carbon Passes Its First Judicial Test

Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment.  This is a big deal in its own right, simply because the numbers are really large – according to DOE, the rule will save 2.89 quadrillion BTUs over the lifetime of equipment purchased under the rule.  It’s a reminder that energy efficiency remains a key to reducing carbon emissions.… More

Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission

windmill-181286_960_720559474_45240941

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More

Exxon Sues Massachusetts AG to Block Civil Investigative Demand

Fuel StationOn June 15, 2016, Exxon sued Massachusetts AG Maura Healey in federal court in Texas, seeking to bar the enforcement of AG Healey’s April 19, 2016 civil investigative demand, issued pursuant to M.G.L. c. 93A, the Commonwealth’s unfair and deceptive practice statute.  Under c. 93A, § 6, the AG may issue investigative demands “whenever [s]he believes a person has engaged in or is engaging in any method, act or practice” prohibited by c.… More

Massachusetts Energy Bill Emerges from Senate Committee on Ways and Means

windmill-640x426-1Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More

I Have Seen the Future and It Is Hot and Wet

The City of Boston has just released its “Climate Projections Consensus.”  It’s not a pretty picture.  Here are the lowlights:

  • Average summer temperatures will be 4-5 degrees F. warmer by 2050 Boston temps
  • 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.…
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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 elec_mag_fieldlaw 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

Draft Released of Highly Anticipated Massachusetts Energy Bill

This week a draft of the long-awaited Massachusetts energy bill was reported out of the Joint Committee on Telecommunications, Utilities and Energy. The bill would require the Commonwealth’s distribution companies to competitively solicit long-term, fifteen- to twenty-year contracts for large-scale offshore wind and hydroelectric power. Notably absent from the bill are provisions addressing resources such as solar, onshore wind, nuclear, energy storage, and energy efficiency.

The bill seeks to jumpstart the development of offshore wind in federal lease areas by directing distribution companies to enter into contracts for 1,200 MW of offshore wind power before July 1,… More

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 progress-on-2020-planby 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

EPA’s Final Methane Rule: Fighting Climate Change Up to January 20, 2017 — And Beyond

Dylan Thomas dylan-thomas-chair_2891799csaid “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

Coming Soon To A Roof Near You: Solar Panels (At Least If You Live in SF)

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems.  solar_homes_310x224I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.… More

Big Changes With Little Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

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.”  MAP 21

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 Mosaic_of_Justinianus_I_-_Basilica_San_Vitale_(Ravenna) (1)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.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere. … More

Water Turning To Blood; Flies; Hail? How About Water-borne Illness, Extreme Weather, and Actual Plague?

Passover starts later this month.  Just in time, the U.S. Global Change Research Program has given us an updated list of plagues.  What’s fascinating is that the new list actually bears a certain similarity to the biblical list.

Why has the U.S. updated the list of plagues?  It’s actually part of a report on “The Impacts of Climate Change on Human Health in the United States:  A Scientific Assessment.”  What’s climate change going to do to us? … More

Climate Change and the ESA: Protecting the Wolverine in the Face of Uncertainty

Under the Endangered Species Act, a species is “threatened” when it is “likely to become an endangered species within the foreseeable future.”  As scientists continue to predict that climate change will alter habitat over the coming century, it certainly seems “foreseeable” that more species will become endangered.  That’s what the Fish & Wildlife Service concluded about the wolverine WolverineSnowin early 2013.  When FWS backtracked in 2014, Defenders of Wildlife sued. … More

If It Walks Like a Carbon Tax and Talks Like a Carbon Tax, (Then the GOP Hates It.)

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” carbon taxand it emphasizes the purposes for which the tax revenue will be used,… More

Kamala Harris Puts Exxon Under Her Microscope: California AG Reportedly Has Launched Review of Oil Giant’s Statements On Climate Change

Students of history know that fighting a two front war is a hazard to be avoided. According to the L.A. Times, however, that is precisely the dilemma that now faces Exxon Mobil:  dual investigations from attorneys general on each coast of the United States.

Several sources are reporting that California Attorney General Kamala Harris’ office is examining what Exxon knew about the science of climate change compared with what the company told investors. … More

Massachusetts Updates Its Climate Song: I Can Get By With A Little Help From My (Canadian) Friends

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

The Paris Agreement: Ac-cent-tchu-ate The Positive

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’ll Go Out On A Limb; The CPP Will Not Be Stayed

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

Does Colorado Support the Clean Power Plan? Yes. And No.

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

What Success Means For COP21

If you want to know what how a rational optimist defines success for COP21, cop21-label_reduit_transparenttake 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).…
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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

Perhaps Massive Purchases of Canadian Hydropower Would Not Be a Panacea

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

Stop the Presses: RGGI Works

When the Regional Greenhouse Gas Initiative RggiLogo2was 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

DOE Releases Draft Environmental Impact Statement for Northern Pass Project

The U.S. Department of Energy (DOE) recently released a Draft Environmental Impact Statement (DEIS) for Northern Pass Transmission, LLC’s proposed 187-mile transmission line across the United States-Canada border in New Hampshire.

If approved, the line would have the ability to deliver 1200 MW of hydroelectric power from Quebec into southern New England—a potentially tantalizing amount of power for policymakers seeking to diversify the region’s generation portfolio and lower its GHG emissions.… More

The Baker Administration looks to Hydropower to meet GHG goals

The Baker Administration announced on July 9 that it filed a bill for sourcing long-term hydroelectric power in the Commonwealth.  Hydroelectric power currently provides a small portion of electricity consumed  in Massachusetts. According to the Energy Information Administration, it ranks behind natural-gas, nuclear, coal and other renewable energy sources.

The bill, titled “An Act Relative to energy sector compliance with the Global Warming Solutions Act,” would require the State’s electric distribution companies  to solicit proposals for hydroelectric contracts spanning 15 to 25 years. … More

The Problem With Relying on Energy Efficiency to Reduce Emissions? People

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.

Nonetheless, a recent article in Energy Research & Social Science (fee required for full article), reported in Tuesday’s Washington Post, provides a useful —… More

Do Climate Change and Same-Sex Marriage Have Anything in Common?

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

The Second Installment of our Paris Climate Change Negotiations Tracker

As the date for the Paris climate talks logomoves 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

No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

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

MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, progress-on-2020-planthe 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.

The Court did not oblige. … More

EPA Is Not an Expert in Determining Electric System Reliability

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.  demand responseIt’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

Majority Support for a Carbon Tax?

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 carbon taxthan 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

Here’s Another Nice Mess: Executive Order 562 Claims Its First Victim

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

Conservative Support for a Carbon Tax? Hope Springs Eternal

I have long thought that the best argument for market-based approaches to climate change scientists-clues-printmitigation 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

Musings on Another Snowy Morning While Waiting For the Redline in Boston

As two current events illustrate, climate change over the coming years is likely to test and ultimately expose the fundamental inadequacy of much of the infrastructure built to support modern societies.  The first current event involves a record-breaking drought in South America which has left water taps dry in many homes in one of the largest cities in the world — San Paulo, Brazil.  The second current event involves record-breaking cold and snow over the past month which has left significant portions of Boston’s public transportation system inoperable.… More

Is a Clean Energy Standard Coming to Massachusetts? We’ll See What the New Governor Thinks

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

EPA Extends The Schedule For Issuing Its Power Plant Carbon Rules

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.

For those looking for a handy summary of actions to date and EPA’s schedule going forward, EPA has provided a short Fact Sheet which sets out the relevant dates for the various rules.… More

Not a Good Day For Cape Wind: NStar and National Grid Terminate the Power Purchase Agreements

According to today’s Boston Globe, both NStar and National Grid have terminated their power purchase agreements with Cape Wind, visual_sim_boat1mile_thumbciting the failure by Cape Wind to meet a December 31, 2014 deadline to obtain financing and begin construction.  Cape Wind is asserting that the utilities may not validly terminate the PPAs, arguing that the protracted litigation against the project excuses Cape Wind’s obligation to meet the December 31 date.… More

I’m Still a Cockeyed Optimist When It Comes to Climate Change

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

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

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

EPA’s Clean Power Plan: Potentially New and Improved?

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 2014-09-08-401kfeedisclosuresystem that’s going to be in place once EPA promulgates a final rule. … More

UCS Says to Add More Renewables to the Clean Power Plan; If It’s Better, Does that Make It Best?

The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy energy-renewable-two-workers-installing-rooftop-solar-panels“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

What a Shock?! Nebraska’s Early Challenge to EPA’s Clean Power Plan Is Dismissed

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 Atmosphere Is a Public Trust. So What?

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.  Kivalina Aerial View

In Kanuk v. Alaska, a number of minors living in Alaska brought suit,… More

Economic Development Is Not an Unqualified Environmental Evil (In Case You Didn’t Know)

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.

I therefore thought it worth noting that, according to a recent study published in Environmental Science and Technology,… 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

83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation of Otherwise Exempt Sources

The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.

To EPA and the court below, the main issue – EPA’s authority – was not difficult.… 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

The RGGI Annual Report for 2013: Do We Finally Have a Real Market for Allowances?

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

What’s the Difference Between ExxonMobil and Shell When It Comes To Climate Change? What’s A Trillion Tons (or Tonnes) Among Friends?

Earlier this week, I posted about ExxonMobil’s shareholder disclosure.  The bookend to ExxonMobil’s disclosure is the release of the Trillion Tonne Communique by the Prince of Wale’s Corporate Leaders Group.  The Communique calls for total carbon emissions to be capped at one trillion tons, a level at which the signers have confidence that global temperature increases can be kept at or below two degrees Celsius.… 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

The Song Remains the Same: Cape Wind Wins Another Case and the Opponents Declare Victory

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

Sold-Out RGGI Auction Triggers Cost Containment Reserve (Which Sells Out, Too)

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

Investment of RGGI Funds Sees Big Returns for States and Consumers

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

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

EPA Is Not a “Bogeyman” According to a Sierra Club Poll: I’m Sure That Will Comfort Nervous Senate Democrats

The Sierra Club released a poll yesterday showing substantial support for EPA’s efforts to regulate carbon emissions from power plants.  The poll was conducted by Greenberg Quinlan Rosner Research, whose representative, Andrew Baumann, was quoted in E&E News as saying that the poll demonstrates that EPA “is not a bogeyman.”  Indeed, the poll shows 44% of respondents with positive feelings toward EPA and only 27% negative. … More

Cape Wind Survives a Legal Challenge to FAA Approval: Is the Opposition Strategy to Play Whac-A-Mole?

On Wednesday, the Court of Appeals rejected a challenge by the Town of Barnstable to the FAA’s “no hazard” determination for Cape Wind.  As background, the same court had determined in 2010 that a prior no hazard determination by the FAA had not been adequately supported.  This time, the FAA did better, in part because the facts on the ground were better.  One significant concern in 2010 had been the potential impact of the turbines on the radar system at Otis Airfield. … More

Governor Patrick Announces Climate Change Preparedness Initiatives: Not Everyone’s On Board

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 NSPS Rule for GHGs Is Finally Published in the Federal Register; I’m Still Skeptical

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

Offshore Wind Marches On: Is Momentum Starting To Build?

Those of us with an interest in renewable energy have long wondered if offshore wind would ever reach its promise.  The knots into which Cape Wind has been tied provide an object lesson – and an abject lesson – in how not to incentivize new technologies.  As of now, offshore wind in the United States remains all promise, and no delivery.

Is the future finally around the corner? … More

RGGI: the Hot New Investment Tip?

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

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

And You Thought Ending Flood Insurance Subsidies Would Be Difficult? Try Persuading a Politician to Support “Managed Coastal Retreat”

Earlier today, I posted about the political difficulties inherent in reforming flood insurance programs to avoid subsidizing those who choose to live in coastal areas subject to flooding.  When even Democratic legislators supportive of efforts to fight climate change oppose such reforms, you know you are in trouble.

Well, when it rains, it pours, as it were.  Just hours later comes news of the release of a report from the Columbia Law School Center for Climate Change Law on “Managed Coastal Retreat.”  The title pretty much tells it all. … More

Yet More on the Adaptation Front: Where You Stand Depends on Whether Your Property Is Underwater

A story in E&E Daily on October 30 highlighted the difficult choices – including political choices – that are going to have to be faced in the process of adapting to climate change.  The story noted that a number of Democratic members of Congress who have supported efforts to address climate change are now opposing efforts to reform the National Flood Insurance Program so that it does not encourage people to locate in areas subject to flooding.… More

More on the Adaptation Front: Comprehensive Climate Planning Is Coming To Boston

If you are still wondering whether municipalities are serious about planning for climate change, the Boston Redevelopment Authority’s announcement this week of its new draft Guidelines for the inclusion of planning for climate change in its Article 80 review (basically the Boston local version of NEPA) might convince you.  While the Guidelines are fairly broad, the accompanying Climate Change Resiliency and Preparedness Checklist gets way down into the weeds.… More

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

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources,… More

Integrated Assessment Models of the Social Cost of Carbon: False Precision Is More False Than Precise

For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs that the use of carbon imposes on society:  the “social cost of carbon”, or SCC.  Recently, attention has focused on efforts to develop “Integrated Assessment Models.”  The point of the IAMs is to integrate the scientific analysis of the changing climate with the economic costs that would result from varying degrees of climate change.… More

Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines

Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.”  Instead, we were told to focus on “growing the clean energy economy.”  The push to frame the climate debate in economic terms continues.  This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines. … 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

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

Which Comes First, Innovation or Regulation?

Two seemingly unrelated stories in Wednesday’s trade press got me thinking – always dangerous – about the relationship between regulation and innovation.  The first story, from Daily Environment Report, noted that House Republicans have introduced a bill which would preclude EPA from promulgating CO2 performance standards for either new or existing fossil fuel power plants until carbon capture and storage systems have been determined to be technologically and economically viable. … More

Jarndyce v. Jarndyce Has Nothing On Comer v. Murphy Oil: The Fifth Circuit Court of Appeals Affirms Dismissal

Readers of this blog will recall the bizarre history of Comer v. Murphy Oil.  In 2005, Plaintiffs brought tort claims against major GHG emitters, claiming that those emissions, by causing global warming, led to plaintiffs’ damages from Hurricane Katrina.  The District Court dismissed, ruling both that plaintiffs had no standing and that the claims were really non-justiciable political questions.  The Fifth Circuit Court of Appeals reversed and remanded. … More

Boston Joins the Building Disclosure Bandwagon: Ordinance Will Require Reporting in 2014

On May 8, the Boston City Council approved an ordinance requiring building owners to report annual energy and water use.  The final ordinance is slightly different from the one about which we posted in February.  Highlights include the following:

  • Building owners subject to the ordinance will have to report on May 15 of each year:

The previous calendar year’s energy and water use of each building and other building characteristics necessary to evaluate absolute and relative energy use intensity.… 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

California GHG Auction: Some Anecdotal Evidence of the Cost of Regulatory Uncertainty?

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

Building Energy Reporting Comes To Boston (Almost)

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

Is this the Future of Adaptation? Who Pays to Avoid the Cost of Coastal Flooding?

The New York Times reported today that Governor Cuomo is proposing to spend $400 million to buy out owners of property to avoid a recurrence of the damage caused by Hurricane Sandy.  I have to say that I have been persuaded over the past few years that we cannot put all our eggs in the mitigation basket, particularly since political gridlock in Washington has prevented much mitigation from occurring.… More

RGGI Turns 4, Celebrates with its 18th Auction

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.

Even if Mary Beth Gentleman and Zach Gerson of Foley Hoag had not defended the two PPAs on behalf of the Massachusetts Department of Energy Resources,… More

Call It a Win: Californa’s First GHG Auction Sells Out

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

Climate Change and Cost Benefit Analysis: Cass Sunstein Is Talking, But Is Anyone Listening?

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

Superfund Meets the Reality of Climate Change

What happens when Superfund runs headlong into Mother Nature?  Hurricane Sandy provides a vivid answer. As the New York Times reports today, Hurricane Sandy had a significant impact on the Gowanus Canal Superfund Site in Brooklyn, NY.  The Canal was completed in 1869 and for over a century was the recipient of industrial discharges from mills, tanneries, and chemical plants resulting in what EPA describes as “one of the nation’s most heavily contaminated water bodies.”  Contaminants include PCBs,… More

Another Step Forward for Offshore Wind: BOEM Releases Its EA for the Massachusetts Offshore Wind Energy Area

ma-wea-noaa-06-05-12-12-2On Friday, the Bureau of Ocean Energy Management released its Environmental Assessment for the Massachusetts outer continental shelf offshore Wind Energy Area. The EA does not permit construction of any turbines. It merely provides the basis for issuance of leases, pursuant to which the leaseholders would have the authority to perform the necessary detailed environmental and feasibility studies to determine whether to proceed with construction of turbines.… More

Probably All You Need to Know About the Prospects for a Price on Carbon Any Time Soon

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

FTC’s New Guidance Has Teeth to Go After Greenwashing

Companies who want to market their products as being good for the environment will need to back up their claims more carefully, in light of the Federal Trade Commission’s new environmental marketing guidelines, released this week. The “Guides for the Use of Environmental Marketing Claims,” or Green Guides, updated for the first time since 1998, discourage companies from using broad claims like “green,” “eco-friendly”, or “environmentally preferable”… 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.

kivalina(1)As most readers will know, last year,… More

RGGI’s Sweet 17th: Cumulative Proceeds Top A Billion Dollars

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

The Tailoring Rule Requires No Alterations: EPA Leaves GHG Permitting Thresholds Unchanged

Last Friday, Lisa Jackson signed “Step 3” of the Tailoring Rule. In what was probably not a surprise to many, EPA determined

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

More Developments in Off-Shore Wind: BOEM Releases ENF for Rhode Island and Massachusetts

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

Easy Cases Make No Law (We Hope): The D.C. Circuit Upholds EPA’s Greenhouse Gas Regulations

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

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

BOEM Identifies a Wind Energy Area offshore Massachusetts: Will the Next Project Take Less Time Than Cape Wind?

offshore wind areasLast Wednesday, the Bureau of Ocean Energy Management announced that it has identified an area offshore Massachusetts for commercial wind energy development. BOEM narrowed the area somewhat from what had been proposed, based on certain wildlife concerns. Although the identification of the area as part of the Department of the Interior’s Smart from the Start program will allow expedited permitting, individual projects by lessees would be subject to NEPA.… More

Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust

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

Repeat After Me: There Ain’t No Such Thing as a Free Lunch

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

EPA Defends the Biomass Deferral Rule — It Feels More Like Rube Goldberg Every Day

On Tuesday, EPA filed its brief in support of its rule deferring regulation of GHG emissions from biomass facilities until 2014. I have two immediate reactions.

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

This Is Why I Remain An Optimist on Climate Change

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

Dog Bites Man, Greenhouse Gas NSPS Edition

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

EPA Issues Its GHG NSPS: Cap and Trade Never Looked So Good

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

RGGI’s First Auction of the Second Compliance Period

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.   

According to the market monitor report, 21.5 million (62%) of the 34.8 million allowances offered for sale by the 9-state group sold at last week’s auction,… More

The Geneva Association Warns Governments To “Wake Up”: Have They Too Drunk The Koolaid?

Last week, the Geneva Association, which describes itself as “the leading international insurance think tank for strategically important insurance and risk management issues,” issued a report entitled “Extreme events and insurance: 2011 annus horribilis.” Quick take-away? Insurance losses are growing. Why? While there were large earthquakes in 2011, the bigger long-term concerns are extreme weather events and an increasing number of people and resources located in areas subject to such events.… More

Shocking News: The D.C. Circuit Court of Appeals Is Not Going to Overturn Massachusetts v. EPA

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

EPA Issues Step 3 of the Tailoring Rule: Did Anyone Hear the Tree Fall?

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

Self-Inflicted Wounds: Climate Change Edition

Two years ago, in posting about the brouhaha over the Climate Research Unit at the University of East Anglia, I noted that self-righteousness among climate advocates does not help their cause. I harbor no illusions about how widely this blog is read, but the more recent foolishness committed by Peter Gleick of the Pacific Institute, in impersonating a board member of the Heartland Institute in order to obtain internal emails about their anti-climate change strategy,… More

Does Energy Efficient Technology Make Buildings More Energy Efficient? The Answer May Not Be So Obvious

ClimateWire had a fascinating story on Monday about federal efforts to increase the energy efficiency of buildings, which are estimated to consume about 40% of our nation’s energy. The story concerns the less than inspiringly-named Greater Philadelphia Innovation Cluster for Energy-Efficient Buildings, which is seeking to substantially alter how building owners think about energy efficiency and the use of technology.

The problem facing GPIC, as it is known,… More

One Small Step Forward For Mid-Atlantic Offshore Wind Development

offshore-wind-power-7259Yesterday, 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

RGGI Makes Some Changes, But Not the Overall Cap. Yet.

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. 

The first change: which we knew was coming;… More

This Just In: EPA’s Utility MACT Rule Will Not Cause the Lights to Go Out.

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

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.” 

I hope that that’s the way the report will be read,… More

More on the Frontlines of Adaptation

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

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.… More

Will Slow But Steady Win the Race? Cape Wind Clears One More Hurdle

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

The Economics of RGGI: A Net Positive, Particularly For New England

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

Building Efficiency — Everyone Is In Favor, But How Do We Get There?

Yesterday, the Daily Environment Report noted the formation of the Coalition for Better Buildings, or C4BB, an alliance of environmental, business, and real estate interests intended to increase the incentives to make buildings more energy-efficient. Its members include real estate trade groups such as the Real Estate Roundtable and the Building Owners and Managers Association, as well as some heavyweight companies, such as Vornado. It also includes environmental groups such as the NRDC and companies who will look to profit from investments in building efficiency,… More

GHG Protocol Finalizes Scope 3 and Product Life Cycle Methodology

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

Inspector General’s Evaluation of EPA’s Endangerment Finding: Form over Function?

As Greenwire reported, the Inspector General of the EPA recently released a report criticizing how the agency followed (and deviated from) procedures in publishing the Technical Support Document that underpinned its December 2009 Endangerment Finding.  The IG was instructed to conduct this review at the order of Senator Inhofe (R-OK), the ranking Republican on the Senate Committee on Environment and Public Works.  The review, which cost nearly $300,000,… More

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government;… More

Virginia Court Finds for Insurer in the First Climate Change-Related Insurance Coverage Case

The Virginia Supreme Court decided on Friday that an insurer does not have a duty to defend its insured in the face of a climate change nuisance case, because intentional emissions, even if they have unintended results, are not an “accident” under the insurance policy.  The case, AES Corp v. Steadfast Insurance Company, had been closely watched as the first of its kind, pitting the new breed of climate change defendants against their insurers.… More

The Carbon Disclosure Project 2011: Big Business Finds Big Returns In Managing Carbon

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

Thirteen Proves to Be A Somewhat Unlucky Number for RGGI

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

Where You Stand Depend on Where You Sit: Utility MACT Edition

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

Carbon Capture & Seriously Need a Price on Carbon Emissions

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

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

AEP Pulls the Plug on CCS

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. 

Well,… More

Important Decision; No Surprise — The Supreme Court Bars Federal Climate Change Nuisance Claims

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

This Week’s Air/Climate Smorgasbord

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

RGGI Auction #12: Demand Crashes, 70% of Current Allowances Go Unsold

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 Next State to Threaten to Dump RGGI? New Jersey!

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

Almost-Final: Massachusetts’ Biomass Regulations

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

Conventional Pollution Is Still Where It’s At: EPA Releases the Power Plant MACT Rule

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

What Does It Take to “Displace” Federal Common Law? The States Have Their Say

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

Federal Agency Adaptation Plans – A New Route for Climate Regulation?

With cap and trade legislation dead in Congress, and the EPA’s greenhouse gas regulations under siege in both the legislature and the courts, the Obama Administration is doing just about the only thing left to address climate change: adapt.

Actually, the science indicates that adaptation will be necessary regardless of how aggressively we are able to reduce greenhouse gas emissions. It’s only a matter of how much adaptation.… More

Climate Risks & Opportunities in SEC Filings

 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

NSPS, CAMR, CATR, BACT, PSD, UGH (The Last One’s Not an Acronym)

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 Administration Does Nuance: The US Files Its Brief in the American Electric Power Case

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

Is NSR Enforcement A Subterfuge For a Carbon Policy — Or Just a Happy Coincidence?

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

Federalism Today: Biomass Edition

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

Would CES Legislation Be Like Half a Loaf of Cap-And-Trade?

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

Want to Know Why Congress Can’t Pass Climate Legislation? Here’s Your Answer

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

The Next Big Thing for the Future of Everything

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

Is the Republican Party In Favor of Sulfur Emissions? Senator Graham Wants To Know

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

Carbon Policy When There Is No Carbon Policy

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

Top 10 Fun Facts About the 10th RGGI Auction

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

EPA Releases Rules for Carbon Capture and Storage

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 first rule creates a new "Class VI"… More

Forthcoming Changes to RGGI? Let’s Start with the Big Cap.

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 Finally Issues GHG BACT Guidance: Now Everything Will Be Smooth Sailing

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.

Not.

It’s certainly true that the GHG BACT Guidance says nothing particularly new about how permitting agencies should perform BACT reviews. … More

Post-Election Climate Wrap-Up: Anxious Days Ahead For EPA

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

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”… More

The GHG Scope 3 Protocol: With Nearly Everything, There’s Something For Everyone

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

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

S&P to Add Carbon to Credit Rating Analysis for 2011?

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

High Stakes and Embryonic Law: FIELD Paper Analyzes Prospects for International Climate Change Litigation

With Kyoto Protocol commitments expiring in 2012, will international climate change litigation be used to push governments towards a binding international agreement to reduce greenhouse gas (GHG) emissions? Does a country like Bangladesh, threatened with almost total submersion due to the impacts of sea level rise, have a case under public international law against major emitters such as the United States or China? These are some of the questions addressed in a working paper entitled International Climate Change Litigation and the Negotiation Process,… More

Just in Case You Thought EPA Could Go On Its Merry Way in the Absence of Climate Legislation

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

EPA’s Mandatory Reporting Rule Adds New Disclosures of Corporate Ownership and Cogeneration

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

RGGI Auction #9: The Floor Price is Right

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

Has The Bell Tolled For GHG Public Nuisance Litigation? The United States Government Thinks So

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

DOE Gives A Good News Cycle for Natural Gas

The US Department of Energy (DOE) announced two items in the last week that, while not related, could both spell large changes in the US energy future and create huge boon to the natural gas industry, if they pan out.

The first is an announcement on Wednesday that the National Energy Technology Laboratory (NETL) has developed a method of freezing natural gas which could both lower the cost of transportation of natural gas and allow access to vast amounts of the world’s gas resources.… More

What’s Next for Carbon Capture and Storage?

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

From Tailoring To “FIPping” – More GHG Action From The EPA

With the abandonment of federal climate change legislation by the Senate last month, EPA’s efforts to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) have taken on even greater importance for the estimated 15,500 emission sources nationwide expected to be affected by the new rules. Yesterday, the U.S. EPA announced a pair of proposed rules to help ensure the implementation of permitting requirements for GHGs,… More

New Developments In The Underground

What do a coal-fired power plant in Meredosia, Illinois and a National Park in Ecuador’s Amazonian jungle have in common? Carbon sequestration — albeit of two very different kinds. Last week, while the U.S. government made a major funding commitment to a project aimed at capturing carbon dioxide emissions from the stack of a coal fired power plant in the Midwest, the government of Ecuador took steps towards preventing the extraction and combustion of fossil fuels in the first place by signing an agreement that would keep a significant chunk of its oil reserves locked underground.… More

EPA’s NSR Enforcement Initiative Marches On

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

Well, I Know I Feel Endangered…

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

The Western Climate Initiative Moves Forward

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

Climate Legislation Is Dead (For Now): Long Live Conventional Pollutants

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

RGGI Allowances on the Secondary Market: Slow but Steady?

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

EPA Issues Its Final Set of Mandatory GHG Reporting Rules

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

Coal Still in the Crosshairs

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. 

Second,… More

Taking it to the Streets: the East Coast’s Newest Climate Initiative

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. 

In a Declaration of Intent released Wednesday, the leaders of the environmental,… More

After Murkowski, What Now For Climate Change in Congress?

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

RGGI Auction #8: Even Cheap Allowances Add Up to Big Investments

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

Disapproving the Disapproval

As you might have heard, late yesterday afternoon, the Senate voted 53-47 to reject a procedural motion that would have allowed a vote on Senator Murkowski’s disapproval resolution: a long-winded way of saying that, for now, the EPA maintains its authority and scientific finding that greenhouse gases endanger public health and welfare. 

As Seth noted a few weeks ago, the political dynamics of this vote are complex,… More

Livable Communities — And How to Achieve Them

With work on financial reform almost complete, Senator Dodd announced this week that his remaining legislative priority is the enactment of the Livable Communities Act, S. 1619. There is a companion house bill, H.R. 4690. A hearing on the Senate bill will be held tomorrow.

It’s hard to be against livable communities and I may just be getting crotchety, but this legislation seems some combination of pointless and misguided. … More

Regional GHG Programs Share Consensus Views on “High Quality Offsets”

By now we are all familiar with the criteria for robust carbon offsets:real, additional, verifiable, enforceable, permanent.  But what exactly do those criteria mean?  And how should a cap-and-trade program be designed to ensure that they are met?  

Earlier this month the three regional U.S. greenhouse gas programs released a white paper which sets out their answers. In Ensuring Offset Quality: Design and Implementation Criteria for a High-Quality Offset Program,… More

Politics Makes Strange Bedfellows: Climate Change Edition

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

Time to See if the Suit Fits: EPA Releases the Tailoring Rule

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

Kerry Lieberman Is Here: Now What?

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

No News Is Good News: Massachusetts Updates Its MEPA Greenhouse Gas Policy

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

Which is Going to Be More Difficult? Getting a Climate Bill or Getting a Climate Bill Right?

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

Patchwork or Preemption, Redux

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

Western Climate Initiative or Mid-Canada Initiative?

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

Another Climate Update: Are Moderates Coming Aboard?

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

Patchwork or Preemption? Or Maybe Both

What will happen to state and regional energy and carbon-related regulations if (perhaps when) federal climate legislation is enacted?  If the Attorneys General of California and 6 New England and Mid-Atlantic states have anything to say about it, very little.  

As E&E reported last night, the Attorneys General of Massachusetts, Delaware, Maine, Maryland, Rhode Island, Vermont and California sent a letter this week to Senators Kerry,… More

Accounting for the Financial Impacts of Climate Change: ASTM Releases a New Standard

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

Insurance Regulators Vote to Weaken Climate Disclosure Rules

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

Bad Day at Black (Coal) Rock

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

Today’s Climate Change Forecast

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

RGGI’s 7th Auction Brings Total Proceeds to Over a Half Billion Dollars for RGGI States’ Projects

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.

As reported in today’s announcement of the auction results,… More

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

Today’s Climate Change Grab-Bag

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

More pressure from Congress on EPA GHG Regulation

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

Put a Price on It

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

An Update On EPA GHG Regulation Under Existing Authority

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

One Small Step For EPA Greenhouse Gas Regulation?

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

More Suits Filed on EPA’s Endangerment Finding

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

Dog Bites Man, February 12 Edition: Law Suit Filed to Challenge Endangerment Filing

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

SEC Issues Climate Change Disclosure Interpretive Release

For those of you who missed it, the SEC finally issued an interpretive release last week clarifying public company disclosure obligations concerning climate change. Rather than rehash it here, I am instead linking to the client alert that we did on the topic.

It is worth noting that, as mentioned in the alert, the release has engendered significant political controversy. Indeed, ranking member Spencer Bachus sent a letter to the SEC questioning the appropriateness of the release. My favorite question in the letter:

Do you believe the Commission’s role is to promote a social policy agenda through the securities laws and regulations?… More

Message to Environmentalists: Self-Righteousness Is Not the Way To Sell Climate Regulation

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

EPA “Furious”: GHG Rules to Be Promulgated in March

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

Coming Soon to a 10-K Near You: Climate Risks

The U.S. Securities and Exchange Commission (SEC) issued interpretive guidance yesterday which requires publicly traded companies to consider the impacts of climate change – both the physical damage it could cause, as well as the economic impacts of domestic and international greenhouse gas emissions-reduction rules – and disclose those risks to investors. As we noted when discussing the potential for this announcement in October, the disclosure requirements are likely to affect companies in a wide range of industries.… More

Will We Have Neither Climate Change Legislation Nor Regulation?

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

Tailoring Rule Update: Just the Mess Everyone Expected

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

When Do EPA BACT Requirements “Redesign the Source”? Not When EPA Says They Don’t

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

Climate Change Legislation Makes Strange Bedfellows: Environmentalists for Nuclear and Coal

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

There Ain’t No Such Thing As A Free Lunch: You Choose, Renewable Energy or Endangered Bats

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

RGGI’s 6th Auction: For 2012, Supply Outnumbers Demand

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

More on Building Standards; Client Rant Edition

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

Given what people until very recently were paying for in their home purchase decisions, and builders were providing — e. g. Cathedral ceilings, minimal insulation, no double paned windows, huge foot prints and cheap construction — it seems that rulemaking to impose more energy efficient building prototypes is just what we deserve.… More

I Have Seen the Future and It Is Zero-Energy Buildings

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

Today’s Betting Line: EPA Regulation Before Legislation is Enacted

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

SEC Reverses Bush Policy on Climate Risk in Shareholder Resolutions

The US Securities and Exchange Commission released a staff bulletin yesterday that reverses a Bush administration policy that excluded shareholder resolutions which asked companies to disclose their climate-related financial exposure. While not the rule-making we discussed last week, this could be a significant change for the boards of large companies who may now be forced to respond to shareholder concerns about the risks that greenhouse gases and climate change can create.… More

Another Front in the Climate Change Battle: NEPA Reviews

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

In February 2008, the International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club petitioned the CEQ to “clarify” its regulations to require the assessment of potential climate change impacts in environmental reviews performed under NEPA. CEQ has not yet formally responded to the petition,… More

Climate Risk Disclosures — Coming Soon to a 10-K Near You?

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

GHG Nuisance Claims? Yes? No? Maybe?

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

It Happened With Tobacco, Why Not RGGI? New York Proposes to Divert RGGI Funds to Deficit Reduction

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

Senate Energy and Climate Legislation: The Nuclear Option

Environment & Public Works Chairwoman Barbara Boxer (D-CA) announced Tuesday that committee hearings on the Boxer-Kerry climate bill, S. 1733, will begin on October 27 and that a mark-up will be planned for early to mid-November. Meanwhile, the Energy and Natural Resources Committee is continuing its hearings on emission allocations, with the next hearing scheduled for Oct. 21.

After announcing the hearing, Boxer said she would try to win over all of the Environment &… More

GHG Regulation under the Existing CAA: Coming Soon to a [Large] Stationary Source Near You

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

I’m Not Dead Yet: Still Hope For a Climate Change Bill?

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 Mandatory Greenhouse Gas Reporting Rule is Final, Reporting Begins in 2010

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

Another Bullet Aimed at Coal; Another Argument For Multi-pollutant and Multi-media regulation

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

New England Governors Adopt Renewable Energy Blueprint

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

Climate Change: An Update on Legislation v. Regulation

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

RGGI Prices Fall Again in 5th Auction: $2.19 and $1.87

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

Senate Climate Bill Pushed Back to Late September

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

EPA Might Take Another Step Towards Regulating Greenhouse Gases Under the Clean Air Act

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

Senate Energy and Climate Change Legislation: Perhaps a Floor Vote by October

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

New York Joins the Bandwagon: Incorporating GHG Analysis Into Reviews of New Project Development

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

Is CO2 a Regulated Pollutant Under the Clean Air Act? Not Yet, At Least in Georgia

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

Massachusetts Finalizes Global Warming Solutions Act Reporting Regulations

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

EPA Finally Grants the California GHG Waiver

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

RGGI’s 4th Auction: Allowance Prices Decrease for Both 2009 and 2012 Allowances

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

RGGI Releases Model Applications for Offsets: Can Anyone Qualify?

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

RGGI, Inc. this week released model applications for offset projects which could create interesting incentives if implemented by each of the RGGI states.… More

(Possibly) Coming Soon: House Floor Vote on Waxman-Markey Energy Bill

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

Distribution of Allowances Under Waxman-Markey

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

Secret Winner from ACES: Coal-Fired Power Plants?

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:

  1. The Waxman-Markey bill would basically preclude the MGGRA from implementing its program.
  2. If the point of the effort is to demonstrate to Congress that coal states indeed do support GHG regulation,…
  3. More

Are You a Member of a Protected Class? Who Is Going to Get Free Allowances Under the Climate Bill?

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

Massachusetts Still Moving Aggressively on the Green Building Front: Now a Stretch Building Code

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

Since there was some ambiguity previously,… More

Nearing Agreement on a House Climate Bill?

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.

  1. The initial CO2e reduction goal will be 17% over 2005 levels by 2020.  …
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More Forecasting for Climate Change Legislation

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

This Week’s Climate Legislation Forecast

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

Today’s Climate (Change Legislation) Forecast

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.

What’s clear at this point is that at least everyone in the political center favors a legislative approach and hopes that the endangerment finding will ultimately have no practical impact,… More

Today’s the Day: EPA Releases Endangerment Finding for Greenhouse Gases Under the Clean Air Act

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

A Dose of Reality for the Climate Change Legislation Debate?

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

New Development on the Climate Change Legislation Front: Is a Zero Emissions Home in Your Future?

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

The House Climate Bill: Details on the Energy Provisions

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

Waxman and Markey Release House Climate Bill: Some Details, But a Long Way From the Finish Line

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

SO2 Allowance Prices Drop: Is There a Lesson Here?

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

Local Opposition to Energy Projects? The Chamber of Commerce Takes the Fight to the NIMBYs

The Empire Strikes Back? Revenge on the NIMBYs? Whatever you want to call it, the U.S. Chamber of Commerce now has a great new web site, called Project No Project, which lists energy projects which have been stalled by local opposition.  The site lists project by state and by type, and explains the status of the project, who the opponents are, and what its prospects seem to be.

It is good to see the Chamber join the digital age and adopt some of the methods of those on the other side of these battles.… More

More on Energy Efficient Building Codes

A recent post of mine concerning Congressional testimony by Phil Giudice, Commissioner of the Massachusetts Department of Energy Resources, in support of a national building code requiring significant improvements in energy efficiency, has apparently caused heartburn among some of my friends in the development community in Massachusetts. Some folks have asked if I have “drunk the kool-aid.” My selfish responses to these comments are, first, that I’m glad some one is reading the blog and,… More

RGGI’s Third Auction Brings In Divergent Bids of $3.51 and $3.05

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. 

 As we noted earlier, new for RGGI’s third auction was that the states offered just under 2.2 million allowances for the 2012 vintage,… More

Insurance Regulators Unanimously Approve Climate Risk Survey

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

Greenhouse Gas Endangerment Finding Out Soon: Will Regulations Be Far Behind?

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,…
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EPA Unveils Nationwide Greenhouse Gas Reporting Regulations

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

100% Auction For CO2 Allowances Takes A Hit

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

Energy Efficient Building Codes: What’s Sauce for the Massachusetts Goose is Sauce for the National Gander

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

Yesterday, Massachusetts took this green building message to Washington. The Environment Reporter states that Phil Giudice,… More

Cap-and-Trade Allowances: The Auction v. Allocation Debate Begins to Heat Up

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

Insurance Goes Green. Yes, Really

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

Cap and Trade or Carbon Tax? How About Both?

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

Today’s Forecast: More Climate-related Litigation on the Horizon

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

Will Decoupling Advocates Find a Dance Partner in Congress?

Among energy efficiency advocates, “decoupling” is the word of the day. Last year, the Massachusetts Department of Public Utilities issued an order decoupling utility rates from sales volume, joining California on the front lines of this issue. The point of decoupling is to eliminate utilities’ rate-based incentive simply to sell more and more power, thus making it easier for utilities to get behind demand management measures.

Congress is now grappling with the decoupling issue as it considers whether to require that states implement decoupling as a quid pro quo for stimulus money related to energy efficiency and conservation. Last week,… More

The Economy and the Environment; I’m Shocked, Shocked, to Find Tension Between Them

Recently, I posted about Governor Schwarzenegger’s efforts to suspend the California version of NEPA with respect to economic stimulus infrastructure projects. Today’s news concerning the impact of the current economic downturn on an ambitious environmental agenda comes from the other coast. Massachusetts has been attempting to rival California in its commitment to a green energy economy, but the Boston Globe today reported on concerns about the Commonwealth’s ability to achieve its green energy goals. My friend Rob Stavins of Harvard is quoted in the Globe as saying that the factors affecting the Commonwealth’s ability to achieve its goals —… More

How Do I Regulate Carbon Emissions? Let Me Count the Ways

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

Finally, Some Good News for Coal

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

So, You Liked NSR Enforcement? How about State Public Nuisance Claims?

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’s Third Auction Looks Into the Future

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

Is There a Conflict Between Environmental Protection and Economic Growth? Could Be.

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

Getting Out Ahead of the Curve on the Green Building Front: EPA Announces Voluntary Agreement With Cushman & Wakefield

We have previously noted that efforts to achieve economy-wide reductions in greenhouse gas emissions will necessarily go beyond the electricity generating sector. One obvious target will have to be greenhouse gas emissions from buildings, which EPA estimates account for 17 percent of U.S. carbon emissions.

Although there have been efforts, particularly in California and Massachusetts, to use state NEPA analogues to control carbon emissions from new projects going forward,… More

Leakage: RGGI’s (not so little) Problem

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

RGGI’S Second Auction: Prices Rise to $3.38

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

Get Ready for Carbon Reporting in 2 weeks!

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

The Sky is Falling. No, It’s Not. Regulation of Greenhouse Gases Under the Clean Air Act

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.

According to a story in the Daily Environment Report,… More

Accounting for the Financial Impacts of Climate Change: ASTM Steps Into the Breach

As the reality of climate change begins to hit home – and as the economy continues to weaken – one issue that may ultimately prove critical in how we respond may be how corporations account for the financial impacts of climate change. Now ASTM is getting into the act. ASTM is working on a standard, titled “Financial Disclosures Attributed to Climate Change,” to provide guidance on the issue.

ASTM has something of a track record in setting environmental standards. Its guidance on doing Phase I site assessments has dictated practice in that area to the point that it was essentially written into EPA’s brownfields regulations. Time will tell whether the financial disclosure standard has the same impact.… More

The Massachusetts GHG Policy Expands Its Scope

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

On August 8, 2008, Governor Patrick signed the Global Warming Solutions Act of 2008. Among other provisions,… More

Not Really So Bad; More on Revisions to the State Building Code

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

Well, the blog’s been up for less than a week, and I have received my first such notice. In my post yesterday about the Governor’s announcement regarding changes to the state building code,… More

The Massachusetts Move Towards Sustainability Gathers Steam

In Massachusetts, officials are continuing to try to walk the climate change walk as well as talking the talk. Today, Governor Patrick and Secretary of Environmental Affairs Ian Bowles announced a program to encourage installation of solar panels on roofs and big box stores and other commercial buildings with flat roofs that are larger than 50,000 square feet.

Initially, the program will be voluntary, but there is no question that this is part of a broader effort by the administration to make energy efficiency a central issue in building design and construction. It is of a piece with the issuance of the greenhouse gas policy issued by the Commonwealth’s MEPA office and the requirement recently imposed by the Department of Public Health to require consideration of energy efficiency in making determinations of need for health care facilities.… More

Which Comes First, the Chicken or the Egg? Innovation and Regulation in the Climate Change Debate

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

Is CO2 “Subject to Regulation” under the Clean Air Act? Time Will Tell (We Think).

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

RGGI Announces Results of First Auction of CO2 Allowances

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

Is CO2 a Pollutant? What Does EPA Really Think?

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

Regulating CO2: How Big An Impact?

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