The Next Big Thing for the Future of Everything

Posted on December 30, 2010 by Amy Boyd

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 authorized by the GWSA) and outlines how the Commonwealth will comply with that limit. 


The 2020 Plan announces a portfolio of policies in five categories – buildings, electricity, transportation, non-energy emissions, and cross-cutting policies (essentially agency procedures that do not fit into the other categories) – representing the suite of policies that the Patrick-Murray administration is committed to pursuing over the next four years, to work toward the 2020 emissions limit.  Together, the policies could result in as much as a 33% reduction of greenhouse gases below 1990 levels, and set the groundwork for the 80% reductions required by 2050 under the GWSA.  EEA also predicts that these policies will reduce Massachusetts’ reliance on imports of energy and fuels, and create or maintain 42,000 to 48,000 jobs in Massachusetts in 2020.

For a summary of specific points included in the 2020 Plan, keep reading after the jump.
 

The 2020 Plan builds on the policies and programs that have been implemented since 2007 – including the Green Communities Act (GCA), various state government executive actions, and federal programs – themselves projected to result in a reduction in GHG emissions of roughly 18% below 1990 levels.  These policies are categorized as “existing,” but the Plan also includes “expanded” policies which build on this framework, and “new” policies that have not yet been initiated or were begun since June, 2010.  Some policies can be put in place immediately, while others require additional legislation and regulation, and some will be tested first through pilot programs.


Buildings: 9.8% reduction of state-wide GHG emissions by 2020
•    Existing Policies:
o    All Cost-Effective Energy Efficiency: building energy improvements under the GCA, which involves a $2 billion investment from 2010-2012
o    Federal Appliance and Product Standards: DOE has announced accelerated schedule for setting new energy efficiency standards
•    Expanded Policy:
o    Advanced Building Energy Codes: commitment under the GCA to adopt the latest IECC, plus local-option “stretch” code that has been adopted by over 60 municipalities
•    New Policies:
o    Building Energy Rating and Labeling: a pilot program in western Massachusetts to assign residential buildings ratings based on their energy efficiency (equivalent to EPA’s miles-per-gallon rating for cars); DOER is also developing a pilot in eastern Massachusetts to rate commercial buildings
o    “Deep” Energy Efficiency Improvements: pilot programs with utilities making rebates and appropriate training and technical support widely available for significant retrofits for residential buildings
o    Expanding Efficiency Programs to Commercial/Industrial Heating Oil: expanding current electric utility programs to provide funding for heating-related efficiency measures in commercial and industrial buildings using fuel oil for heat
o    Developing a Market for Solar Thermal Water and Space Heating: for both residential and commercial buildings
o    Tree Retention and Planting to Reduce Heating and Cooling Loads: pilot program to provide incentives to plant new trees around existing housing and retain trees in new housing developments


Electricity Supply: 7.7% statewide GHG reduction
•    Existing Policies:
o    Massachusetts Renewable Portfolio Standard (RPS): requiring 15% of electricity supply to come from renewable sources by 2020
o    Regional Greenhouse Gas Initiative: regional cap-and-trade program resulting in 10% reductions in CO2 emissions from large electric generating units
•    Expanded Policy:
o    Clean Energy Imports: building new transmission line(s) for import of Canadian hydro-electric power
•    New Policies:
o    More Stringent EPA Power Plant Rules: EPA plans to implement a variety of regulations that will affect air and water emissions at power plants; this may result in the closure of some of the older, smaller power plants
o    Clean Energy Performance Standard (CPS): would require electricity suppliers to favor lower- and no-emissions sources  


Transportation: 7.6% state-wide GHG reduction
•    Existing Policies
o    Federal and California Light Vehicle Efficiency and GHG Standards: federal CAFE standards are being raised for model year 2016, and California is expected to adopt even stricter standards for 2017 and forward.  Massachusetts law requires the Commonwealth to adopt the California standards.
o    Federal GHG Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Vehicles: EPA and US Department of Transportation programs to improve fuel efficiency for model years 2014-2018
o    Federal Renewable Fuel Standard and Regional Low Carbon Fuel Standard: although the exact programs are still developing, federal and Massachusetts law require an increase in the volume of renewable fuels to be used and the average carbon intensity of vehicle fuels to fall by a specific percentage compared to petroleum fuels
o    Sustainable Development Principles: 2007 program to make state investments increase the amount of growth in locations and densities that reduce vehicle miles traveled and GHG emissions, or create other clean energy benefits
•    Expanded Policy:
o    Smart Growth Policy Package: policies to focus on influencing infrastructure investments by state agencies and planning decisions made by local governments to reduce the number and distance of vehicle trips
•    New Policies:
o    Clean Car Consumer Incentives: EPA and MassDOT will conduct a study to examine the best methods for the Commonwealth to provide incentives to consumers to shift their vehicle purchases to more fuel-efficient or lower GHG emitting models
o    Pay As You Drive Auto Insurance Pilot: encouraging insurance companies to offer programs that convert annual premiums into a variable cost based on miles traveled
o    GreenDOT: announced through a policy directive by MassDOT in June 2010 to reduce GHG emissions, promote the healthy transportation modes of walking, bicycling and public transit and supporting smart growth development


Non-Energy Emissions: 2.0% state-wide reduction
•    Expanded Policy:
o    Reducing GHG Emissions from Plastics: by diverting plastics from the waste stream through increased recycling efforts
•    New Policies:
o    Reducing GHG Emissions from Motor Vehicle Air Conditioning: Massachusetts law requires adoption of California’s vehicle emissions standards, which may be expanded include regulations to minimize the global warming potential of refrigerants, increase efficiency, and reduce leaks
o    Stationary Equipment Refrigerant Management: beginning with a voluntary pilot program focused on leak detection and repair for facilities with refrigeration units containing at least 50 pounds of refrigerant
o    Reducing SF6 Emissions from Gas-Insulated Switchgear: a pilot program and possible regulation to minimize leakage of this gas used in electricity transmission and distribution systems

Cross-Cutting Policies: reduction not quantified in 2020 Plan
•    Existing Policy:
o    Green Communities Division of DOER: established under the GCA, this office assists communities qualify for grant funding as Green Communities
•    Expanded Policies:
o    MEPA GHG Policy and Protocol:  adding the requirement for some projects undergoing MEPA review to quantify their GHG emissions and identify measures to avoid, minimize and mitigate such emissions
o    Leading By Example: program established in 2007 to oversee state efforts to reduce carbon emissions across state government buildings and procurement, potentially expanded to include purchasing and managing clean energy
•    New Policies
o    Consideration of GHG Emissions in State Permitting, Licensing and Administrative Approvals: as required by the GWSA, all state agencies, departments, boards, commissions and authorities would take into account GHG emissions and other climate change impacts when issuing permits, licenses or other approvals.  EEA will collaborate with other agencies to develop a plan to implement this requirement in particular agency actions.

 
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Massachusetts Legislature End of Session Scorecard: One Good, One Bad

Posted on August 3, 2010 by Seth Jaffe

As the Massachusetts legislative session wound down, there was the usual last-minute scramble – heightened, this time, by the Legislature’s focus on casino gambling. Notwithstanding the preoccupation with gambling, the Legislature did manage to enact the Permit Extension Act, which developers have been pushing for some time. Briefly, permits in effect at any time between August 15, 2008 and August 15, 2010, will be extended for two years. To read more, check out our client alert.

The Legislature was not able to get wind siting legislation enacted. The House passed the bill at midnight on the last day, but it died in the Senate. Presumably, those legislators who will defend home rule with their dying breath think that the 8 years Cape Wind has spent in permitting (yes, I know that Cape Wind would not have been affected by the wind siting legislation) and the 7 years that the Hoosac wind project has spent in permitting demonstrate that our permitting system works well and needs no improvement.

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Stop the Presses: Trespass Is Not a Petitioning Activity

Posted on March 2, 2010 by Seth Jaffe

Massachusetts has an “anti-SLAPP” statute (as do 26 other states at this point, apparently). The law protects “petitioning”, by precluding litigation targeting petitioning, providing an early motion to dismiss, and awarding attorneys’ fees to defendants where a court finds that the defendants were indeed engaged in petitioning activity.

Yesterday, the Massachusetts Appeals Court struck a blow for reason when it determined, in Brice Estates v. Smith, that a trespass is not protected petitioning activity. Those of you outside Massachusetts may be wondering why we needed a court case to tell us this. Those of you inside Massachusetts, particularly in the development community, know where this is headed.

Brice Estates involved a real estate developer, looking to build a large residential subdivision. Low and behold an abutter observed a four-toed salamander – a species protected under the Massachusetts Endangered Species Act. Of course, the developer shouldn’t have been surprised, because developers of projects with significant opposition often learn of mysterious discoveries of endangered species at the project location.

The only aspect of this case that was different was that a specifically identified person was known to have gone onto the developer’s property – thus providing the basis for a trespass claim. The Court of Appeals made clear that, while notifying the authorities of the presence of the salamander was protected petitioning activity, the trespass itself was not. Moreover, the court also made clear that, even if the reason why the owner filed suit was the protected petitioning activity, the owner may still bring the action with respect to the non-protected activity.

Time will tell whether the lesson to NIMBY types is “no shenanigans” or “don’t get caught.”

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Ocean Zoning Gets Off the Ground in Massachusetts

Posted on July 1, 2009 by Seth Jaffe

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 is zoning brought off-shore. There are areas where certain uses are prohibited, areas in which uses are encouraged, and other areas that will be subject to performance standards to determine whether specific uses should be allowed. Where uses are at least conceptually allowed, there will be provisions to protect sensitive areas, including a provision that requires proponents of uses in such areas to “avoid, or demonstrate that there is no less damaging practicable alternative, or demonstrate that data does not accurately characterize the resource or use.”

The Plan is important for several reasons:

The breadth of its application

The effort to integrate ocean planning with the Commonwealth’s climate change agenda

Its potential precedential effect on other states and nascent federal ocean zoning efforts

Public hearings on the Plan will be held in September, though they have not yet been scheduled. Even in advance of the hearings, comments on the Plan can be submitted here. The schedule calls for the final Plan to be issued by December 31, 2009.

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