Accelerating Electric Vehicle Adoption in 2022

This past year represents a real turning point in the transition to electric vehicles, demonstrated by new major incentives and regulatory activities at both federal and state government levels and several notable accomplishments in the private sector. First, the U.S. government approved EV Infrastructure Deployment Plans for all 50 states, the District of Columbia and Puerto Rico with an estimated $4.155 billion in funding going to states in the next five years to build out EV infrastructure.… More

CEQ Issues NEPA Climate Guidance

The new year brings new NEPA (interim) guidance on climate change.  It recommends several ways that federal agencies should consider climate change impacts for projects subject to NEPA review.  The guidance is effective immediately but is subject to a 60-day comment period that could lead to revisions.  Comments on the guidance are due to CEQ on March 10, 2023.

All projects that are federally funded or need federal permits,… More

Monitoring, Reporting, and Verification: Why the Carbon Dioxide Removal Industry Can Expect—and Could Benefit from—Increased Oversight

Carbon dioxide removal (CDR), or the range of technologies and processes for removing carbon dioxide from the atmosphere and oceans, promises to be a major part of US and global climate strategy in the coming decades.  Recent governmental actions have created significant financial incentives for the rapidly growing CDR sector.

Given the heightened importance of CDR technologies, some regulators and members of the public are calling for a broader range of measures to ensure that CDR projects are accurately monitored,… More

News Flash! International Cooperation on the Environment Remains Possible

In these times of much woe, it’s always noteworthy when the mainstream media reports good news.  Especially when it’s good news about effective international cooperation on environmental protection issues. 

Today, the New York Times reported that a recent assessment shows that the world is on track to reach pre-1980 levels of upper atmosphere ozone by roughly 2040.  That is in spite of the discovery in 2018 of “rogue” use of chlorofluorocarbons, probably from factories in China.

And so, this is not just evidence of progress resulting from the original cooperation that led to the Montreal Protocol in the first place.  Even in this day and age, release of the 2018 report and the resulting attention brought to the issue was apparently sufficiently embarrassing to the Chinese government to cause it to crack down on the use of CFCs.

It’s also noteworthy that the crackdown occurred without use of any enforcement mechanism.  There was no punishment.  There wasn’t even any acknowledgement of the issue by the Chinese.  Nonetheless, the offending emissions ceased.  I wouldn’t say that everything is always for the best in this best of all possible worlds, but it’s important to recognize that cooperation on international environmental issues remains possible.

We sure could use some more of it.

EPA Proposes to Lower the PM2.5 NAAQS — Searching For the Goldilocks Level

EPA has finally proposed revisions to the national ambient air quality standard for PM2.5.  The Administrator is proposing to lower the standard from 12.0 ug/m3 to a range of 9.0 to 10.0 ug/m3

Readers of this space will recall that the Clean Air Science Advisory Committee recommended that EPA lower the PM2.5 NAAQS to between 8.0 and 10.0 ug/m3.  Environmentalists aren’t going to be happy with any standard above 8.0 ug/m3 and it’s likely that conservatives aren’t going to be happy with any decrease from the current standard.

In any case, it appears that EPA is not worrying about any stakeholders other than the nine members of the Supreme Court.  Administrator Regan is clearly looking for the Goldilocks NAAQS; neither too lax nor too stringent.  The following or similar language appears repeatedly throughout the proposed reconsideration:

The Administrator recognizes that the final suite of standards will reflect the Administrator’s ultimate judgments in the final rulemaking as to the suite of primary PM2.5 standards that are requisite to protect the public health with an adequate margin of safety from effects associated with PM2.5 exposures. The final judgments to be made by the Administrator will appropriately consider the requirement for standards that are neither more nor less stringent than necessary and will recognize that the CAA does not require that primary standards be set at a zero-risk level, but rather at a level that reduces risk sufficiently so as to protect public health with an adequate margin of safety.

It’s hard to argue with this approach and I expect both that EPA will stick with it in the final decision.  I also expect that the courts will agree that EPA’s decision, whether at 9.0 ug/m3 or 10.0 ug/m3, is neither too hot nor too cold, but is instead just right.

I’d also speculate that the next time EPA reviews the PM NAAQS, the only question will be whether EPA has reduced it enough; it’s not going to be considering whether the then-current NAAQS is too stringent.

U.S. DOE Announces $3.5 Billion to Accelerate Direct Air Capture Commercialization

The U.S. Department of Energy (DOE) recently announced a $3.5 billion funding opportunity to create regional Direct Air Capture (DAC) Hubs. The DAC Hubs program is one of four new programs announced by the Biden-Harris administration aimed at building “a commercially viable, just, and responsible carbon dioxide removal industry,” in the U.S. with funds from the Bipartisan Infrastructure Law (BIL).

Under the DAC Hubs program,… More

MassDEP Proposes Cumulative Impact Analysis Regulations — It’s About to Get Interesting.

After more than a year of work, MassDEP has proposed regulations that would require applicants to perform cumulative impact analysis prior to issuance of certain air emissions permits.  The regulations were required by the environmental justice provisions of the 2021 Climate Roadmap Act.

The requirement to perform a CIA will apply to any person seeking a comprehensive plan approval in or within one mile of any environmental justice community as well as to any project requiring a comprehensive plan approval that is within five miles of an EJ community, if the project will be a major source under MassDEP rules.

Key requirements include:

  • Enhanced public notice and involvement requirements
  • A thorough assessment of existing community conditions
  • Air quality dispersion modeling
  • Risk characterization for air toxics
  • Overall evaluation of a project’s cumulative impacts, including “any mitigation measures that [the proponent] will implement to reduce or minimize the cumulative impacts of the proposed project.”

There are lot of important issues here, but I’ll note two for those potentially subject to these regulations.  First, the proposed regulations state that MassDEP “shall not propose to approve” any application unless the cumulative cancer and non-cancer risks are less than the regulatory limits.  However, what if the risk exceeded the threshold even absent the new project and the new project proposes to reduce the cumulative risk?

This first question pretty much frames the second – how will MassDEP review proponents’ analysis of potential mitigation measures?  Will it essentially create a virtual allowance system, in which proponents must buy emissions reductions that will be greater than the emissions of the project itself as a prerequisite to approval?

At a broader level, it’s reasonable to ask whether the cost of mitigating cumulative impacts should be borne entirely by the new project.  What if it’s a mostly clean project that provides a lot of benefits, including to the EJ community that the regulations are intended to protect?  This isn’t an easy problem to solve, given that air plan approvals are good for the life of a project; there is no requirement to renew the approval at any time.

There are a lot of other issues that those potentially subject to the CIA regulations should review, including the requirements for doing air dispersion modeling and how the air toxics risk characterizations must be conducted.  For those interested in commenting on the proposal, MassDEP will hold virtual public hearings on March 7 and 9.  The public comment period ends April 7, 2023.

EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act? 

The agencies’ dream scenario is that SCOTUS ducks the issue in its Sackett decision, concluding that it doesn’t need to review the scope of CWA jurisdiction in order to determine the merits of the Sacketts’ position.  Then, the agencies manage to persuade SCOTUS in review of the rule itself that the rule is largely consistent with how WOTUS has been interpreted for more than 40 years, with some minor tweaks to address additional scientific understanding and to provide additional certainty to the regulated community.

The agencies do a pretty good job making the argument; if you don’t want to read the entire 514 pages, the 11-page Executive Summary explains fairly clearly why the rule is consistent with the statutory language and the science in this area.

Without taking a position on the pros and cons of the specifics of the rule, I’ll only note that what’s funny, in a not very funny sort of way, is that the agencies are almost certainly right that protecting the marginal resources the rule is intended to protect is exactly what the statute says they should be doing – even though it remains unlikely at best that SCOTUS will care at all.

Still, all the agencies can do is implement the law as they understand it in order to attain the statutory goals.  They’ve given SCOTUS a basis on which to uphold the WOTUS definition.  Now, or soon, it will be up to SCOTUS.

FERC Proposes to Implement Expanded Transmission Siting Authority

On December 15, 2022, the Federal Energy Regulatory Commission (“FERC”) issued a notice of proposed rulemaking in which the Commission proposes to implement its newly clarified authority under the 2021 Infrastructure Investment and Jobs Act (“IIJA”) to issue permits if a state denies an applicant’s request to site transmission facilities in a designated National Interest Electric Transmission Corridor (“National Corridor”).

Such change has potential—in certain cases—to tilt the balance of transmission permitting authority toward FERC and away from the states (where such authority traditionally has been held),… More

Another Day Older and Deeper in (Carbon) Debt

The International Energy Agency has released its 2022 Coal analysis and forecast.  It is sobering. By the time 2022 is over, world-wide coal consumption will have exceeded 8 billons tonnes for the first time.  In other words, 2022 was a record year for coal.  It is true that demand was largely flat compared to 2021 and there were some extraordinary reasons – such as a war in Ukraine – for even the moderate increase.

However, we don’t need flat coal demand; we need to start seeing significant decreases.  And the IEA report isn’t predicting those any time soon.  Instead, the IEA is predicting a plateau at around 8 billion tonnes lasting through 2025.

Once one gets over the depressing nature of this forecast, a few issues emerge from the IEA forecast.  First, while the war in Ukraine has affected European coal consumption, this remains largely about China, India, and other developing countries.  Since developing countries are not really interested in being told to curtail development to minimize GHG emissions, the developed world has to focus on what they can do to help moderate GHG emissions from China and India as much as on its own emissions.

Relatedly, this issue reminds me that, in all of our recent debate about how to achieve the GHG emissions reductions that are necessary, I’ve seen little or no discussion about the cost-effectiveness of different ways to reduce GHG emissions.  And I get that, because we need to reduce all sources.  Still, cost-effectiveness considerations should tell us not to focus solely on reducing our own emissions.  And we need to remember that providing technology to developing countries to reduce carbon emissions can provide significant economic benefit to the United States and Europe.

In any case, we are a long way from Tennessee Ernie Ford’s 16 Tons.  And our carbon debt is growing bigger every day.

Next Up for Massachusetts Building Emissions Reductions: Tackling the Clean Heat Challenge

This week, the Massachusetts Commission on Clean Heat released its final report.  The report seeks to establish a framework for a long-term reduction in emissions from heating fuels, to align with the Commonwealth’s emissions reduction target of net zero by 2050 and the 2050 Decarbonization Roadmap.

According to the 2050 Roadmap, on-site combustion of fossil fuels in the residential and commercial building sectors presently accounts for about 27% of statewide greenhouse gas emissions, and the use of these fuels for building heat is the largest end-use contributor to emissions in the building sector.  But the barriers to converting to clean heat are significant, including capital investment and operating costs, public awareness, and availability of equipment and trained installers.   The Commission’s report includes a host of recommendations for the Commonwealth and underscores the urgency for action – without immediate action in the next year or two, we are unlikely to be able to achieve the pace and scale of change needed to meet the 2050 goals.

To achieve these goals, the Commission recommends the Commonwealth transition away from investing in new or increased natural gas infrastructure or capacity and instead deploy funds to support a net zero future.  Some of the key recommendations include:

  • implementing a Clean Heat Standard by 2024;
  • conducting joint energy system planning with the Department of Public Utilities, the Department of Energy Resources and the gas and electric utilities;
  • identifying ways to reduce electric operating costs for those who convert to clean heat

On the issue of whether to phase out new fossil fuel heating systems by law, the Commission was split, but recommended the issue be further analyzed.

Another key theme of the report is that the present rate-payer funded Mass Save program that provides incentives for building decarbonization is neither designed for nor capable of achieving the type, pace, and scale of change that are needed.  As the report notes,

there is an inherent conflict of interest within the program — which is likely to become more challenging moving forward — whereby investor-owned gas utilities are being asked to implement decarbonization measures that are designed to reduce their revenue base by switching customers to efficient electric appliances.

The Commission recommends a wholesale reform of the program and the establishment of a new Building Decarbonization Clearinghouse that would advance equitable decarbonization efforts, be accessible to all, and serve as a “one stop shop” for building owners, residents and businesses.

Although outside the scope of the Commission’s work, the Commission emphasized that the Commonwealth must work in parallel to expand the supply of clean energy and the capability of the grid over the long term so that the system can handle the resulting load growth.

The Commission was established by Governor Baker in 2021 and delivered its report to his Administration on the eve of their departure.  Governor-elect Healey has her work cut out for her!

 

BOEM Slated to Act on Two Gulf of Maine Offshore Wind Activities in 2023

The Bureau of Ocean Energy Management (BOEM) of the U.S. Department of the Interior (DOI) is responsible for the development of offshore renewable energy in federal waters. While the first Gulf of Maine offshore wind lease sale is not expected until 2024, this post explores recent actions BOEM has taken to advance offshore wind in the Gulf of Maine and the agency activity we’re likely to see in the year ahead.… More

Our Environmental Statutes Are Broken

Last week, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide cyantraniliprole. This effects determination was supposed to be issued before EPA registered the pesticide.  Unfortunately, EPA did not do so.  Moreover, EPA acknowledged that it routinely registered pesticides without performing the required effects determination.

In fact, EPA did not only ignore the clear statutory requirement.  It also ignored a court order from 2017 requiring EPA to prepare the required determination and redo cyantraniliprole’s registration.

Didn’t happen.

Why not?  Basically, EPA’s position is that it just cannot do what the statute requires.  Indeed, EPA has stated publicly that, at least through 2030, it will perform effects determinations only when ordered to do so by a court.

More to the point, why am I blogging about a cut and dried case such as this?  Because it’s just another example of the way in which our patchwork quilt of environmental statutes is fraying at the seams.  (How’s that for an extended metaphor?)

  • FIFRA – requires assessments prior to registration that EPA cannot begin to accomplish.
  • ESA – Basically the same. The listing process is pretty much on a schedule determined by citizen suits and court orders.
  • The Clean Water Act – It’s routine for EPA to take more than 10 years to act on NPDES permit renewals.
  • The Clean Air Act – The Supreme Court has ruled that it does not provide authority for EPA to address the defining issue of our time. Many people, including me, think that SCOTUS got it wrong, but I don’t think that the decision was crazy.  More to the point, if West Virginia v. EPA had occurred in the 1970s, Congress might actually have gone to work and fixed it.  There’s little chance of that happening now.
  • CERCLA – We’ve clear-cut numerous forests to supply the paper needed for all of the cases criticizing CERCLA’s drafting. Now, EPA is proposing to list certain PFAS as hazardous substances.  The listing itself is defensible, but anyone with eyes open knows that the resulting litigation nightmare will be truly … nightmarish.

I could go on.  Is there any likelihood that Congress will act to fix any of these problems?  I didn’t think so.

The various statutes passed in the 1970s into the early 1980s have resulted in many benefits.  They created a pathway towards cleaning our air, water, and land.  Since then, we have the shining success of the Clean Air Act amendments of 1990, but pretty much nothing else.  Those early statutes, however much they accomplished, were flawed when they were written, and are clearly not up to today’s challenges.

I know I’m not the first to raise these issues.  Plenty of smart people have proposed creative ways to solve the problems I’ve described.  My friend Dan Esty has suggested what is essentially a market-based approach to environmental regulation.  One of my law professors, Guido Calabresi, recognized the broader problem of the ossification of statutes almost forty years ago, making the novel suggestion that we might treat statutes the way we treat the common law, allowing judges to adapt statutes to changing circumstances.  This would hardly be in tune with the current vogue for originalist modes of interpretation, but it is at least an approach that recognizes the problem.

The key issue, however, is that it’s difficult to see any of these creative solutions actually being implemented.  And so we just leave it to EPA to muddle through.

The Social Cost of Greenhouse Gas Emissions is About to Get Much More Expensive

Following an announcement at COP27 by President Biden, the EPA issued a supplemental proposal to reduce methane and other harmful emissions from new and existing sources in the oil and gas industry. In its regulatory impact analysis for the supplemental proposal, EPA included a sensitivity analysis detailing a revised methodology and new estimates for social cost of greenhouse gases (SC-GHGs), including carbon, methane,… More

Maine Offshore Wind Roadmap Expected in Early 2023; Here’s Why the OSW Industry Should Take Note

The State of Maine is expected to release the Maine Offshore Wind Roadmap in early 2023, and the global offshore wind industry should be watching. Preliminary details from the state’s roadmap—the focus of this post—clearly indicate that Maine is preparing to seize the significant opportunity presented by the Gulf of Maine offshore wind resource.

Maine’s offshore wind energy potential is ranked seventh in the nation, with more than 411 TWh/yr of offshore resource-generating potential.… More