Category Archives: Sustainability

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

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.  Over the lifetime of these programs the states have funded thus far, they will offset a projected 8.5 million megawatt hours… 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

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, the main purpose of which will be to harden energy supply infrastructure, including projects to deploy micro-grids.  There… More

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

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.  The report discusses “rolling easements,” which expand to follow… 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

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

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.

Key aspects of the proposal include the following:

Non-residential buildings of at least 50,000 square feet would be required to report beginning in 2014.  Non-residential buildings of at least 25,000… 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

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

Ban the Bottle or Preserve Our Liberty? Concord Bans the Sale of Certain Plastic Water Bottles

This may not be the most earth-shattering stories reported in this space, but it is a Massachusetts story, and the rhetoric surrounding the issue is sufficiently noteworthy that I thought I would, er, note it. Concord, Massachusetts, has apparently become the first community in the nation to ban the sale of certain plastic water bottles.

According to the Boston Globe, the ban was championed by Concord resident Jean Hill, who was quoted as saying “I hope other towns will follow. I feel bottled water is a waste of money.” Actually agree with Ms. Hill that bottled water is a waste… 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, and one from Connecticut.   The report also found that aggregate emissions from these plants were, as expected, far below the allowance cap set for the first 3… 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

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

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.

The EA also addresses the individual site assessment plans, or SAPs, that will have to be performed by… 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

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, 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

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.

So what’s the problem? The problem is that East Boston is a waterfront community. Indeed, arguments have long… 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, the SJC decision is more of a necessary than sufficient condition to construction.

On the… 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, such as Siemens and Johnson Controls.  

The C4BB’s mission is to:

Propose policy solutions from… 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

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; and Coastal Zone and Oceans.

Certainly, the summary of potential impacts in Massachusetts is not a pretty picture – speaking metaphorically, anyway; many of the pictures in the report actually are pretty cool. For those… 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, the 13 companies that had been recognized by CDP for this strong focus for the last 3 years outperformed the Global 500 by over 60 percentage points over the same period.  Does monitoring and disclosing a company’s carbon footprint and incorporating the risks… More

Greenpeace Critiques Apparel Sector Companies for Failing to Manage Water Contamination by Suppliers

green_peace_china_01Some of the world’s most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers.  In a new report called “Dirty Laundry“, Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands — including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste, Nike, Phillips-Van Heusen and Puma.  

In the report, Greenpeace alleges that the suppliers’ facilities discharge a range of hazardous chemicals into the Yangtze and Pearl River deltas –… More

How Many Miles Per Gallon Does Your Building Get? The Ratings Game Comes to Buildings

According to EPA, buildings account for 36 percent of total energy consumption and 65 percent of electricity consumption in the United States. In the absence of comprehensive legislation that would put a price on carbon, which would give building owners direct incentives to implement cost-effective efficiency measures, a number of jurisdictions have started looking into and in some cases implementing requirements that at least commercial buildings be subject to energy efficiency ratings.

Last week, the Institute for Market Transformation (now isn’t that a name to put fear into the hearts of Tea Party members) released a report on… More

Of Texans and Light Bulbs. And Unconstitutional Laws.

What is it with Texans and light bulbs lately?  The gradual increase in energy efficiency requirements of light bulbs required under the Energy Independence and Security Act of 2007 survived Congressman Joe Barton’s (R-Texas) challenge last week when the Better Use of Light Bulbs (BULB) Act, which would have repealed the standards, failed to pass the House by a vote of 233-193.  But on Friday, an amendment attacking the same requirements, introduced by another Republican Texan, Michael Burgess (representing my old hometown), was added to the House bill governing the Department of Energy’s 2012… 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. 

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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.  Just in time, EEA yesterday released the Clean Energy and Climate Plan for 2020, which sets the 2020 emissions goal at 25% below 1990 levels (the maximum reductions… More

How Is Carbon Policy Like Anatevka? A Little Bit of This, A Little Bit of That

anatevkaBill Hogan at the Kennedy School (shameless plug for alma mater) kindly asked me to speak at a meeting this week of the Harvard Electricity Policy Group. I’ve titled my talk “Carbon Policy When There Is No Carbon Policy.” Several items that came across the wires in the past few days buttress the theory behind my presentation, which is that our current carbon policy really is “A little bit of this, a little bit of that.”

First, Phillip Brooks, director of EPA’s Air Enforcement Division, told an ALI/ABA forum that… 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)  That amount is only 57% of the 2009-2011 allowances offered for sale, the lowest yield from a current compliance period auction;

8)  38 entities bid on these current compliance period allowances, down from 45 in… 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.  This plan involved two stages: one with the cap stabilized at 180 million tons CO2e from 2009-2014, and the second, from 2015-2018, with a cap… 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 & Reporting Standard and the Corporate Value Chain (Scope 3) Accounting and Reporting Standard. The two sets of calculations from the two guidance documents… 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

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. NETL has created a special nozzle technology that rapidly traps natural gas in ice to… More

Sometimes Guidance Is Better Than Regulation: Massachusetts Issues “Safe Development” Guidance For Engineered Nanoparticles

The BNA reported today that the Massachusetts Office of Technical Assistance and Technology has developed a guidance document identifying considerations for the safe development of engineered nanoparticles, or ENPs. As many of my readers know, I am deeply suspicious of regulatory agency guidance documents. Guidance is often used as a short-cut so that the agency can avoid notice and comment rule-making. Moreover, it’s generally one-sided; agencies refuse to be bound by guidance, because “it’s only guidance,” but street level bureaucrats effectively treat the guidance as regulations, so that the regulated community is effectively deprived of the flexibility that guidance… More

Product Stewardship or Just Cost-Shifting?

Product stewardship is definitely in vogue. The Daily Environment Report has just noted that the United State Conference of Mayors has adopted a resolution calling for “Extended Producer Responsibility For Products.” I understand the arguments in favor of product stewardship. From an economic point of view, the disposal costs associated with products and product packaging can be seen as an externality. Internalizing those costs would give manufacturers and distributors incentives to minimize those costs, through reduced packaging or changes in design/manufacturing that would reduce the costs associated with product disposal.

Nonetheless, I’m skeptical of the USCM resolution and wonder about how “producer… 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.

RGGI’s announcement of the auction results highlights some of the specific programs in which the states have invested, and the returns we are already… 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. The legislative findings discuss traffic congestion, the percentage of oil used for transportation and CO2 generated from transportation, and the need to encourage and sustain compact development and historical town centers…. 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.

Frankly, the rest of the issues really only matter either to particularly constituencies or, as a related concern, to particular members of… 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

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, quantifying and disclosing potential material impacts related to climate change, both the benefits and liabilities. 

The standard does not set out specific measurements, but rather guidelines.  The degree and type… More

Sorry; The Gas-Powered Alarm Clock Is No Longer Available

Some stories are just to much fun to ignore. Late last week, the GAO issued a report on the joint EPA/DOE Energy Star program. The sub-head says it all: “Covert Testing Shows the Energy Star Program Certification Process Is Vulnerable to Fraud and Abuse.” GAO found that it was able to obtain Energy Star certifications for 15 out of 20 bogus products for which it had sought certification, including a gasoline-powered alarm clock and a room air cleaner for which GAO submitted a picture of a space heater with a feather duster attached.

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The CEQ Issues Draft Guidance on Consideration of Climate Change Under NEPA

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

The draft is very limited in scope at this point; CEQ may have decided that what is most… 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.

In its press release announcing this decision, the SEC said that this interpretive guidance neither creates new legal requirements… 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. Zero will be hard to get to but I think we’re a long ways from technical impracticability at this point. 

Why can’t they make as… 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.

Need more evidence? How about this story from yesterday’s Greenwire. The E.U. has reached agreement on a directive that will require almost all large… More

Another Corner Heard From: Portland (Oregon) Releases a New Climate Action Plan

Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.

The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California, Massachusetts, and other states that have enacted or will soon enacted some version of a Global Warming Solutions Act, the Plan provides a helpful catalogue of the types of changes that might… 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.

The Bulletin states that going forward, the Corporation Finance Division will no longer automatically allow the exclusion of proposals that deal with the evaluation of risk,… 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, but that hasn’t stopped noted environmentalist Senator James Inhofe (R. Okla.) from weighing in preemptively. Calling NEPA a “bedrock environmental statute,” Senator Inhofe has informed Nancy… 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. The other would be a re-interpretation of Form 10-K disclosure rules to require companies to disclose and comment on operations tied in with mitigating climate-change risks.

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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.

The interesting questions will be whether other states follow New York’s lead and whether this has any effect on… 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, leaves some sections blank. Senator Boxer apparently intends to issue a mark-up of the bill sometime in October. One note for the politically-minded readers of this blog – just don’t call the… 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.  The blueprint calls for states to hold joint hearings and coordinate decisions when appropriate, but even using common applications and timelines could have… 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, Greenwire reported that: “As Hill debate flounders, EPA plows ahead on emissions rules.” [And for those of you who can’t get enough of the debate between “founder” and… 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, the DEC Policy has a few items worth noting.

DEC has provided that, with respect to indirect GHG emissions from: (1) off-site energy generation and (2) vehicle trips,… More

House Energy & Climate Bill: The Renewable Electricity Standard

Congress moved one step closer to adopting a federal renewable electricity standard ("RES") with the narrow passage of the American Clean Energy and Security Act by the House.  Twenty-nine states already have adopted some form of renewable energy portfolio standard, but a federal RES is widely thought to be important for creating a national renewable energy and energy efficiency market.  The House RES establishes a national compliance obligation overseen by the Federal Energy Regulatory Commission (“FERC”) under which large retail electricity suppliers (“Suppliers”) are required to invest in renewable energy and energy efficiency. For… More

Ocean Zoning Gets Off the Ground in Massachusetts

This week, the Massachusetts Executive Office of Environmental Affairs announced release of the draft Ocean Management Plan, developed pursuant to the Oceans Act of 2008. The draft Plan has gotten most press for its identification of specific areas for off-shore wind energy development – as well as its prohibition of wind farms in other areas, including the area of the proposed Buzzards Bay wind farm. EOEEA Secretary Ian Bowles was quoted as saying that Buzzards Bay is too crowded and sensitive for the development of large-scale wind farms.

The Plan is about much more than wind farms, however. It really… 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, almost one-third below the $3.05 price that they earned at the March auction, which was the first at which… 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. Unlike some of the offset provisions proposed under ACES, all of the… More

Sustainable Stormwater Management: The Next Wave in Water Pollution Regulations?

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

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

using small-scale stormwater management practices, nonstructural… 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 — "I think the speaker and the majority… More

Next on the Federal Agenda: Ocean Zoning

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

The Massachusetts effort is based on the Oceans Act of 2008,… 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) –                     1.5%

Low/moderate income households –                   15%

Energy intensive / trade-exposed industries –    15%

Domestic oil refiners –                                          2%                                                     

Carbon capture / sequestration –… 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, let me be clear: I’m not a supporter of the stretch code. It’s one thing for states to regulate greenhouse gases in the absence of an active federal program. Even state and interstate… 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.

The initial CO2e reduction goal will be 17% over 2005 levels by 2020.  This compares to 14% sought by the President and 20% in the original draft bill. 35% of allowances would be distributed to local distribution companies and 15% of allowances would be distributed to industries subject… 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… 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.

The finding, which now moves to a 60-day public comment period, identifies the six greenhouse gases that pose a potential threat as a set, a… 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. This was consistent with the recent Senate action that seemingly put the final nail in the coffin on the idea of using the budget process as a… 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.

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

In addition to the global warming provisions that we posted about last week, clean and renewable energy occupies a significant place in the draft bill.  The… More

The House Climate Bill: More Details on Federal Cap and Trade

As we mentioned yesterday, the discussion draft of the Waxman-Markey “American Clean Energy and Security Act of 2009” which was released on Tuesday is notable both for what it includes and the significant portions it leaves to be decided at a later date.

In summary, the bill contains four titles:

a “clean energy” title, which promotes renewable energy through a portfolio standard of 6% in 2012 rising to 25% by 2025, additional funding for carbon capture and sequestration, a low-carbon transportation fuel standard, and authorization for federal agencies to enter into long-term contracts with renewable energy providers; an… 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, it is at least as notable for what is omitted than for what is included. Here are some highlights… More

More News From the Coal Front: Mountaintop Mining Takes One Hit — and May Face Another

This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining’s Big Branch project in Pike County, Ky., and the Highland Mining Company’s Reylas mine in Logan County, W.Va., before permits are issued for those projects.

Although the broad brush is important here, so are some of the details. First, both letters raise concerns… 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.

Of course, one person’s NIMBY is another’s… 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, second, that I’m sorry they are not commenting directly. I really do want discussion.

My third reaction is that a point of clarification seems in order. No, I… 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, providing a first-look at future market prices for RGGI allowances. These 2012 allowances sold at a clearing price of $3.05, while the 31.5 million… 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. 

The mandatory survey’s adoption comes shortly after Maplecroft, a British risk management firm, reported that, although third world… 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, Commissioner of the Massachusetts Department of Energy Resources, testified before the Senate Energy and Natural Resources Committee in favor of Congressional action to require states to require at… 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. Today’s budget proposal adds the detail that the President intends to direct $15 billion per year from these funds towards renewable and alternative sources of energy… 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, reporting could begin as early as May 2010.

The survey approved by yesterday’s vote asks insurers to annually answer eight questions involving what the company… 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, 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

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.  

While that mission will focus on climate change, as its name implies, it will not be limited to litigation under the Clean Air Act. It was the CBD which led the… 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, both the… 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 — including the… 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.

Unfortunately, we live in the real world and in the real world, there are often trade-offs to be made between economic growth and environmental protection. This critical tension was brought home… 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, and there have been similar efforts to build energy efficiency into state building codes, existing buildings will inevitably become a focus, simply because their carbon emissions are too big to ignore.

Yesterday,… 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, ratcheting down emissions to 10% below 2005 levels by 2018, it does not preclude utilities… More

Trends in CO2 Emissions in RGGI States

On the eve of the second RGGI auction, it is reasonable to ask what the trend is in CO2 emissions in the RGGI states. Environment Northeast just issued a report which seeks to answer that question. According to ENE, which utilized data from EPA and the RGGI states, CO2 emissions in the RGGI states through the third quarter of 2008 are trending 16 percent below the RGGI cap.

As ENE notes, both oil and coal prices were extremely high during this period, so there is no guarantee that these low emission levels will be reflected in data for the fourth… 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, at a recent forum held by the American Law institute and the American Bar Association, the prevailing view was… 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, the Act provided specific statutory authority for the MEPA GHG Policy and provided that greenhouse gas emissions should be addressed in any state permits.

As a result of… 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, I noted that developers would be concerned about a multiplicity of building codes in different municipalities. The Commonwealth’s… 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… 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, the Bush position was certainly inconsistent with traditional economic theory – as well as with off-stated conservative positions on issues. Once one accepts that greenhouse gas emissions lead to climate change, i.e.,… More

Welcome to the Law and the Environment Blog

Foley Hoag is excited to launch the Law and the Environment Blog. In today’s fast changing world, almost all of us get our news—including our news about developments in environmental law and policy—electronically. This blog is not intended to be a substitute for the BNA™, or Greenwire™, or Google™, although we do hope that we will be able on occasion to let you know about issues that haven’t yet come to your attention.

What we really want to accomplish is to provide some perspective on those developments. We’ll try to tell you which developments may matter to you. And why… More

Green Development Marches On: Health Care is Up Now; What’s Next?

The new Determination of Need Guidelines for Environmental and Human Health Impact adopted by the Massachusetts Department of Public Health are further evidence that sustainability and green development are much more than just buzzwords in Massachusetts. It appears that this administration is serious about incorporating green development principles into all executive branch decision-making.

In brief, the Guidelines require a health care facility applying for a Determination of Need (“DoN”) for new construction or gut renovation to meet LEED-HC “silver level” green building standards. The scope of the Guidelines’ impacts could not be broader, implicating site selection, water and electricity use,… More