Category Archives: GHG

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.  This is not meant as a criticism… 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. This would translate into a 40% reduction in GHG emissions, rather than the 30% that EPA says the proposed CPP would attain.

I don’t know if… 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.

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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, claiming that Alaska had violated its public trust obligation to protect the atmosphere. While finding that the plaintiffs had standing, the Court held… More

You Can’t Estop the Government — Even When It Wants to Be Estopped

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.

In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal, California. Although section 165(c) of the Clean Air Act requires EPA to act on such applications within one year, EPA failed to do so.

Subsequently, and before… 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.

Now Massachusetts – that leader in all matters progressive – has done something about it. As Governor Patrick announced earlier this week, Massachusetts has enacted H.4164, “An Act Relative to Natural Gas… 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. PSD applies to “any regulated air pollutant.” Once EPA issued the tailpipe rule, GHGs became a regulated pollutant. Thus, EPA had not just discretion to regulate… 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, including non-monetary factors

• The winning bidder or bidders will have one year in which to submit a site assessment for the… 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. After Massachusetts v. EPA, EPA pretty clearly has authority to regulate GHG emissions from power plants. If EPA did that… More

EPA’s GHG Rule: The Really Big Picture View

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.

What do we know about EPA regulation of GHG?

• The Supreme Court has told EPA that greenhouse gases are, collectively, a pollutant under the Clean Air Act. That’s a… 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.

• The number of participants in the RGGI auctions increased by an average of… 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.

In order to attain the one trillion ton cap, the Communique calls for a transition over the course of the century to planet-wide net zero carbon emissions.  In order to reach net zero… 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.

The reports do not deny the reality of climate change.  Indeed, the reports acknowledge climate change, acknowledge the need for both mitigation and adaptation, acknowledge a need to reduce fossil fuel use (at… 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).  The CCR, which was intended as a safety valve to keep allowance prices from spiking, was introduced in the 2013 changes to RGGI, and last Wednesday’s auction… 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.  The NODA explains why the rule would not violate the Energy Policy Act.

In short (but explained at greater length in its accompanying Technical Support Document):

EPA’s… 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.  However, that concern was largely addressed in the interim by the addition of a digital processor to… More

Massachusetts Issues Draft SREC II Regulations: Headed Toward 1.6GW of Solar By 2020?

Last year, Governor Patrick announced a goal of 1.6GW of solar electricity in Massachusetts by 2020; a goal that requires more than 1.2GW of new solar in the next six years.  The Massachusetts Department of Energy Resources has now issued draft regulations for its SREC II program.  The regulations are too complicated to summarize in a blog post, but you can read the details in our client alert.

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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.  The work group concluded that “the agency is using the best available science and has conducted… 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.

Really?  Does anyone other than EPA think CCS is feasible, at least at this point?  After the September release of the proposal, an EPA Scientific Advisory Board work group stated that:

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Is Renewable Energy At Parity With Fossil Fuels? Not Quite, But Certainly Closer

According to ClimateWire on Tuesday, a Minnesota state administrative law Judge’s recommendation to the state Public Utility Commission may be the first time that a solar project has been declared cost-competitive against natural gas in an open bidding situation.  That might be a little bit hyperbolic, given that Xcel Energy, which would be purchasing the power, has an obligation to significantly increase its solar portfolio and the decision recognized the economic value of the solar renewable energy credits that the recommended winner, Geronimo Energy, would produce.  Nonetheless, if affirmed, it will be an important decision and is certainly… 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?  Two developments this past week at least give the optimists reason to believe.  First came news that, according the Siemens, Cape Wind’s turbine supplier, construction has in fact begun, allowing Cape… 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.  In proposing the rule, EPA stated that… 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.

Over the expected life the of the project, the proponent must analyze how the project is prepared to address extreme weather events, including heat waves, storms, wind, and… 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.

Robert Pindyck of MIT just prepared… 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.  The economic cost to consumers of this “lost gas” was put at between $650 million and $1.5 billion from 2000-2011.

Senator Markey is not… 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.  In fact, the record before the Court indicated that EPA believes that some biogenic sources may on net reduce GHG levels… More

MassDEP Proposes Amendments to CO2 Budget Trading Regs to Implement RGGI Program Changes

On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations.   These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review.

As Seth previously discussed, the major change is a new cap that reduces the baseline budget of allowances for 2014 by 45%, with additional 2.5% reductions in the years 2015 through 2020.   The reduction is designed to address the significant excess supply… More

The President Issues His Climate Action Plan: Not Much Mention of Congress

President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act.  At a certain level, there is not much new here.  The mere existence of the Plan and the commitment to address climate issues is presumably the point.

The Plan does not provide many specifics.  The Memorandum does provide specifics regarding the issuance of new source performance standards.  EPA is directed to issue a new proposal by September 20, 2013.  That’s not a lot of time, so EPA… More

Not a Good Week for Private Climate Change Litigation: The Supreme Court Denies Review in Kivalina

It has not been a good run for plaintiffs in private climate change litigation.  As we noted last week, the 5th Circuit Court of Appeals affirmed dismissal in Comer v. Murphy Oil.  Now, on Monday, the Supreme Court denied certiorari in Native Village of Kivalina v. Exxon Mobil.  Kivalina ended more with a whimper than a bang, since the simple denial of cert. carries no opinion or precedential weight.

Given the increasing number of expensive disasters, as well as the costs imposed by long-term sea level rise, I actually expect more and more private claims to be… 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.  However, before the mandate issued, six of the court’s nine active, unrecused judges voted to hear the case en banc.  That vote also vacated the panel decision, leaving the District… 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.

Non-residential buildings of at least 50,000 square feet would be required to report beginning in 2014.  Non-residential buildings… 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.

The further irony would be if those opposed to climate change regulation, who have successfully… 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.  Could it be that uncertainty about the future of the allowance program might depress prices in the out years?  Given the fits and starts with which carbon regulation has… More

Combine New Gas Plants, Lower Gas Prices, and More Stringent Emission Controls and What Do You Get? Lower Emissions

ISO New England has just released its Electric Generator Air Emissions Report for 2011.  The bottom line?

Total emissions of NOx, SO2, and CO2 have decreased by 12.1%, 29.5%, and 10.2% from 2010 to 2011 Emission rates for NOx, SO2, and CO2 have decreased by 8.7%, 25.8%, and 5.9% over the same time period

As our observant readers will have inferred, ISO reports that total energy generation was down by 4.6% from 2010 to 2011.  ISO attributes most of the emissions decrease to an increase in gas-fired generation and a corresponding decrease in coal- and oil-fired generation.  According… More

Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”

In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups.  The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance, so seemed worth mention.

The issue in the case was that the environmental groups, known collectively as “Beyond Nuclear,” contended that the relicensing proceeding should include wind… 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… 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), and three times higher than the highest ever… More

Clean Air Grab Bag

There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.

First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. Monday’s argument confirmed that view, with Judges Tatel and Griffith both posing tough questions to EPA regarding how… More

Coming (Sort of) Soon To An Ocean Near You: 4 Gigawatts of Wind Power

As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. Of course, that’s just when the fun starts. Each lessee is going to have to do a full environmental review before construction even begins, so it will still be some time before we see electrons flow from the… 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; I only wonder whether anyone is paying attention. On one hand, while Sunstein notes that President Obama supports cost-benefit analysis, Democrats in Congress – and many environmentalists – have long been skeptical,… 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.  Moreover, because the report is intentionally conservative, and downplays the future impacts of investments in efficiency and other reductions in demand, the 17% goal… 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” that are difficult, if not impossible, to substantiate. Although the guidelines are not formal rules, they do specify how FTC will enforce US marketing laws.

Instead, environmental claims should be clear,… 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, in American Electric Power v. Connecticut, the Supreme Court determined that public nuisance claims for injunctive relief have been displaced by the comprehensive federal regulatory scheme embodied in… More

No Early Appeal on the New Mexico Public Trust Climate Case

For those of you following the public trust climate litigation in New Mexico, Judge Sarah Singleton has now issued a written decision denying the state’s motion to dismiss the case. There is no discussion of the issues, but it did seem worth noting that Judge Singleton also denied the state’s request for immediate interlocutory appeal (though providing that the request could be renewed after summary judgment), so there will be no early appellate decision on this issue in New Mexico.

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.

In other words, subjecting more facilities to the GHG rule would still pose a risk of tying the system in knots, so EPA’s not going there – at least not yet.

EPA also promulgated… 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.

The bottom line is that EPA not only had authority to issue the regulations; it had a legal… 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. 

I hope against hope that the Department can take some action that will not unduly obstruct construction of wind projects, but that will, if not… 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, but that she was cursed never to be believed. I am firmly convinced that environmentalists’ pessimism is self-fulfilling, because it is part of the reason why they are often ignored.

In any case,… More

Massachusetts’ Climate Change Efforts: Nation-Leading, But Still Not Good Enough?

Massachusetts was one of the first states to launch an ambitious greenhouse gas reduction program, setting a 2020 goal of cutting emissions 25% from 1990 levels and a 2050 goal of an 80% reduction.  With less than eight years to go before 2020, is the Commonwealth on track to measure up?  According to a report released this week by think tank MassINC and the Clean Energy States Alliance, maybe not.

The report concludes that, although Massachusetts has implemented many effective programs — notably the renewable portfolio standard, energy efficiency programs, and Green Communities program, all of which… More

Still No Insurance Coverage for Climate Change Nuisance Litigation — At Least in Virginia

kivalina(1)Last week, the Virginia Supreme Court ruled (for the second time) that a CGL policy issued to AES Corporation did not require Steadfast Insurance to provide a defense to AES for claims brought again AES in Kivalina v. Exxon Mobil. The decision, in AES Corporation v. Steadfast Insurance, held simply that, based on the “eight corners” of the complaint and the insurance policy, the claims against AES did not allege an “occurrence” under the CGL policies at issue.

Obviously, if climate change is real, and at least unless and until courts… 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, EPA intends to promulgate emission guidelines for states to develop plans reducing CO2 emissions from existing fossil-fuel-fired” power plants.

I… 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.  Indeed, at a certain level they cannot be faulted unless you don’t believe in climate change, and I am not in that camp. Since climate change is real,… 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.

The proposal does include two options to allow GHG sources to streamline permitting, both of which may be of real value to some sources:

Provisions to “improve the usefulness of… 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, the Bipartisan Policy Center issued a report concluding that compliance with the various EPA rules in the works (Clean Air Transport Rule, Utility MACT Rule, coal combustion ash rule, Clean… 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.

Earlier this week, EPA decided not to go along with the restrictive approach taken by Massachusetts, and granted a petition to… 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 – as long as the legislation precludes EPA regulation of GHG under existing authority. 

For those who are taking the half a loaf approach to climate legislation, I… 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.

As with the PSD/NSR regulations, I remain sympathetic to EPA in that, once you take Massachusetts v. EPA as a given, and if you accept the logic of the Endangerment Finding,… 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. Giving credit where credit is due, I’ll complement EPA for using plain English and describing the basic BACT process about as cogently and concisely as I’ve… 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… 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, but might apply to US companies as well.  The article reports that S&P could include carbon in their credit rating analysis on a global scale, as early as the first… More

Is EPA Treading On Thin Ice With Its Climate Change Regulations?

On a day when ClimateWire reported that thousands of walruses are stuck on land because their usual summer home – sea ice – has disappeared, I’m beginning to wonder whether EPA’s stationary source GHG rules are similarly at risk. It may not be difficult for EPA to brush off a fairly over the top letter from Texas which basically asked EPA “What part of ‘hell no” don’t you understand?”

However, today Greenwire reports that Governor Freudenthal of Wyoming – a Democrat – is asking EPA to defer enforcement of GHG stationary… 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, asking the Court to accept a certiorari petition filed by the defendants in American Electric Power v. Connecticut, the 2nd Circuit case in which the Court… 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, industrial waste landfills and magnesium production facilities to begin collecting emissions data on January 1, 2011, and submit their first annual report in March 2012. Despite being few in number, these facilities, which… 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, as Daily Environment reported, the Army Corps of Engineers suspended use of Nationwide Permit 21 for the six states in the Appalachian region, covering Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and… More

Due Process? We Don’t Need No Stinkin’ Due Process.

Last Friday, the Court of Appeals for the 5th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs’ appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court dismissed the case. A panel of the 5th Circuit reversed. A request to rehear the case en banc was made. Seven out of 16 judges recused themselves. Of the nine remaining judges, six voted to rehear the case en banc.

Three… 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, 2011 – Facilities obtaining… 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” identified by EEA in its summary is not a change at all – it’s EEA’s decision to retain the current case-by-case approach to determining appropriate performance standards and mitigation requirements. EEA decided not to… 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, but instead when the nationwide controls actually take effect under the rule. In other words, assuming that EPA finalizes the mobile source GHG rule… 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.

The GHG permitting threshold will be “substantially higher than the 25,000-ton limit that EPA originally proposed.”

No permits will be required until 2011. Initially, only facilities otherwise subject… 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 – and introduced legislation preventing EPA regulation. According to Representative Skelton, the bill would “get the EPA under control.”

In light of the efforts in Congress, it just seemed too perfect not to note that EPA’s… 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, legislation certainly seems less likely than… 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.

Greenwire has a helpful collection of some of the more notable comments. What… 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, in the absence of cap-and-trade legislation enacting? EPA’s already told us, and we shouldn’t be surprised – promulgation of EPA’s “Tailoring Rule,” subjecting existing facilities emitting more… More