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. I’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”… More
Category Archives: Infrastructure
This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21. MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”
The NPRM addresses this criterion, focusing largely on emissions of criteria pollutants. However,… More
Yesterday, the White House released a fact sheet describing its efforts to create a “21st Century Clean Transportation System”. There’s a lot of interesting material in the plan, but all the headlines have been on the President’s inclusion of a $10/barrel tax on oil in his FY2017 budget as a means of paying for the various improvements contained in the plan.
The fact sheet doesn’t use the words “carbon tax” and it emphasizes the purposes for which the tax… More
On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation (FAST) Act—a five-year, $305-billion transportation authorization and spending bill. The FAST Act largely focuses on funding highways and other transit infrastructure, but, interestingly, it also contains provisions overhauling the environmental review of infrastructure projects under the National Environmental Policy Act (NEPA).
For example, the FAST Act requires agencies to coordinate their environmental reviews of transportation projects to avoid duplication and accelerate the review process. In addition, the Act expands agencies’ ability to apply categorical… More
Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make developers quiver in their boots, how about this first line?
We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.
From this beginning, the PM goes on to make clear that federal agencies have an obligation to avoid and… More
Governor Baker recently submitted Senate Bill No. 1965 to the Legislature. It calls for utilities to solicit long-term purchases of renewable energy. We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period. Two rationales are often provided to justify the large purchase of Canadian hydropower. First, cheap hydropower will ameliorate the high cost of electricity. Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. Sounds like a win-win. More
In an important decision last week, United States District Judge Jorge Alonso rejected the Environmental Impact Statement for the Illiana Corridor Project, which would connect I55 in Illinois to I65 in Indiana. (And why Illiana? Why not Indianois?)
The two key criticisms were raised by metropolitan planning organizations (MPOs) in Illinois and Indiana. First, they argued that DOT used a “market-based” population forecast that showed much faster growth in rural areas than the “policy-based” forecast used by the planning agencies. As best as one can infer from the decision,… More
On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and combined with a typical willingness to spend money we didn’t have.
As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first… More
Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require. As with any MEPA (or NEPA) analysis, it has two parts: identification of impacts and discussion of mitigation measures.
Regarding impacts, the Adaptation Policy would require that proponents “identify potential project vulnerabilities under certain future climate conditions consistent with the anticipated lifespan of the project.” More reasonably, the Policy would require… 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, I’ll look at some of the specifics.
Under the Adaptation Policy, proponents of projects required to prepare an Environmental Impact Report would have to assess the impact of climate change on the… More
Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards
In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP, DOT reasonably performed a qualitative analysis of PM concentrations based on a receptor five miles from the project area.
The regulations require the proponent to demonstrate that the project will not “increase the frequency or… 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
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, the main purpose of which will be to harden energy supply infrastructure, including projects to deploy micro-grids. There… 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
It was a busy week on the climate change front in Boston. First, RGGI announced a new Model Rule. Under the new Model Rule, summarized here, the 2014 cap would be reduced by 45%, from 165 million tons to 91 million tons. Because such a sharp decrease in allowances will be expected to cause an increase in allowance prices, RGGI has now provided a safety valve, known as the cost containment reserve. The CCR will make additional allowances available – 5 million allowances in 2014 and 10 million allowances thereafter – if the price exceeds a trigger, which… 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.
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
E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”
Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee, in the great Commonwealth of Massachusetts. According to Mayor Bissonnette, the cost of stormwater compliance in Chicopee will be $200 million – this for… More
Here’s a Suprise — A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay
Yesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay. Pardon me if I seem to be posting a lot of dog bites man stories recently.
Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively, the scope of the benefit is worth noting. If trading were allowed basin-wide, and among both point and agricultural non-point sources, costs are projected to… More
On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that.
EPA is not in a good place at the moment. There is significant congressional opposition to any rule, with comments questioning not just the wisdom of a rule, but EPA’s authority to issue a post-construction rule at this point. Addressing stormwater will undoubtedly be extremely expensive. The same E&E story noted that… More
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.
What’s my primary response to reports such as this, other than that dog is biting man again? It’s to wonder what climate skeptics think of all this. I understand the inclination of conservatives… 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, is one with which I confess I was not familiar. According to the statistics from the Energy Information Administration:
Over the past 20 to 30 years, every… 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, but I’m worried. Perhaps I just have too many NIMBY-related scars. Whatever the reason, I am worried about the report’s statements that there
is limited epidemiologic evidence suggesting an association between exposure… More
Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week, there have been stories about Portsmouth, New Hampshire, and Hallandale Beach, Florida.
The long-term picture in these cities is no prettier than that of East Boston. The specifics don’t… More
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.
So what’s the problem? The problem is that East Boston is a waterfront community. Indeed, arguments have long… More
The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given the (one hopes) temporary problems with the federal loan guarantee program and Cape Wind’s failure thus far to sell the rest of the power from the project, the SJC decision is more of a necessary than sufficient condition to construction.
On the… More
Last night, the United States Senate voted to reject President Obama’s $447 billion jobs plan. Recall that the bill, filed by the President on September 12 and styled the “American Jobs Act of 2011”, includes a mix of tax cuts, extensions of expiring jobless benefits, and new spending on infrastructure – including roads, railways and schools. The bill also includes an expansion of the discretionary TIGER grant programs, and the increasingly popular TIFIA loan program. Big picture, it was designed by the White House as its plan to keep the country out of a recession in the coming year.
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, the Governor balanced the scales, announcing a proposal for a 19-cent increase in the gas tax. Now, to be fair to the Governor,… More
Massachusetts Takes Steps to Ensure That Stimulus Spending is Not Bogged Down in Environmental Reviews
It looks as though Massachusetts is going to at least try to avoid having lengthy environmental reviews create obstacles to spending its share of the federal stimulus package. A draft report prepared by the Commonwealth’s Permitting Task Force makes several recommendations which, if implemented, would indeed help to ensure that the money can get out the door and the shovels in the ground. Highlights include:
Allowing projects to proceed, at their own risk, during permit appeals. Providing that appeals related to any stimulus projects would be heard in the permit session of the… More