Last week, Judge Donald Malloy vacated the Environmental Assessment for the Bull Mountains Mine No. 1 in central Montana. Judge Malloy had already vacated the EA once; when the 9th Circuit affirmed Judge Malloy’s decision that the EA violated NEPA, it remanded the case for new findings as to whether vacatur would be appropriate. 
The default rule is that when agency action has been struck down,… More
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
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
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.… More
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
On November 4, 2022, the White House announced a new initiative to support research and development projects on 37 “game-changing” technologies to advance the Biden Administration’s goal of net-zero emissions by 2050.
Led by an interagency working group, the “Net-Zero Game Changers Initiative” will direct billions of dollars under the bipartisan infrastructure law, the CHIPS and Science Act, and the Inflation Reduction Act toward five initial priorities:
Lost amid the more high profile items in Massachusetts’ recently enacted Act Driving Clean Energy and Offshore Wind is a requirement that the Department of Energy Resources establish a program requiring large buildings across the Commonwealth to report energy usage on an annual basis. The requirement goes into effect on July 1, 2024, but DOER has an additional year (until July 1, 2025) to draft implementing regulations and establish the parameters of the reporting program. … More
On Friday, I posted about a decision invalidating BLM Resource Manage Plans for failure to comply with NEPA. My caption was “NEPA Is Still Going to Pose an Obstacle to Leasing Public Lands for Fossil Fuel Extraction.” Little did I know how prescient I was, because later on Friday, Judge Brian Morris – the same judge who invalidated the RMPs – went farther and reinstated the moratorium on leasing of public lands for coal mining that had been implemented by then-Secretary Jewell in 2016. … More
Earlier this month, Chief Judge Brian Morris made clear that NEPA remains a powerful weapon against the leasing of public lands for fossil fuel extraction. It’s déjà vu all over again for the projects at issue. In 2018, Judge Morris ruled that two resource management plans (RMPs) prepared by the Bureau of Land Management concerning potential expansions of coal mines in Wyoming and Montana violated NEPA for a variety of reasons,… More
Based on numerous sources, Governor Baker has now signed an Act Driving Clean Energy and Offshore Wind. This bill includes a number of key advancements for increased adoption of zero emission vehicles and clean transportation throughout the Commonwealth. The law:
The Inflation Reduction Act looks to accelerate the adoption of clean vehicles by reforming the related tax credits in a number of key ways. Specifically, the bill does the following.
Those wondering what states can do to at least partially ameliorate the impacts of West Virginia v. EPA need look no farther than Massachusetts, which issued its Clean Energy and Climate Plan for 2025 and 2030 the same day that the Supreme Court extended its crusade against the modern world by limiting EPA’s authority to regulate in the absence of a clear delegation by Congress.
First,… More
Take my predictions with a grain of salt, because I still remember saying that Ronald Reagan would never fool enough voters to get elected, but it seems very likely at this point that Maura Healey will be the next Governor of Massachusetts. That makes her release of a climate plan a matter of some significance. 
My take is that it is extremely ambitious,… More
Earlier this month, the Intergovernmental Panel on Climate Change released Climate Change 2022: Mitigation of Climate Change. As all IPCC reports are, it’s a serious piece of work and not easily summarized at blog length. Nonetheless, here are some of what seemed to me to be important takeaways:
The Boston Air Pollution Control Commission has formally adopted its “Building Emissions Reduction and Disclosure Ordinance Phase 1 Regulations.” The Phase 1 regulations are really all about the “disclosure” side of BERDO. The “reduction” side will be addressed by the Phase 2 regulations, which at this point are scheduled to be completed by the winter of 2023. 
The final Phase 1 regulations largely track the draft released late last year. … More
The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases. The Court did not leave much doubt that the administration will prevail on the merits. 
Issuance of a stay is based on criteria very similar to those regarding entry of an injunction. The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted. … More
Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC. The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated.
How big a deal is this? … More
EPA has now formally restored its waiver under § 209(b) of the Clean Air Act that allows California’s greenhouse gas emissions standards and Zero Emission Vehicle mandate, notwithstanding the preemption of state vehicle emission standards contained in § 209(a) of the CAA. EPA also restored the authority of other states under § 177 of the CAA to adopt the California standards. 
In what we lawyers might describe as pleading in the alternative,… More
In the first appellate decision to decide the issue since the Supreme Court decision in BP P.L.C. v. Mayor & City Council of Baltimore, the 10th Circuit ruled this week that climate damage claims brought by several Colorado counties should nonetheless still be heard in state court. The most important issue in the case was whether the Clean Air “completely preempted” state law claims. … More
Believing in the importance of aggressive action to address climate change is something of a recipe for bipolar disorder. Trump – depression. Biden first 90 days – elation. News today from ClimateWire (subscription required) that power plant GHG emissions increased by more than 3% in both 2020 and 2021 – depression. 
ISO New England attributes most of the increase to the shutdown of the Pilgrim Nuclear Power Station and replacement of Pilgrim’s generation by natural gas generating facilities. … More
Each year since 1995, with the exception of 2020, the United Nations Framework Convention on Climate Change (UNFCCC) has hosted a Conference of Parties (COP), where members of the UNFCCC negotiate issues relating to reducing greenhouse gas emissions and other matters relating to climate change. The 26th COP concluded in Glasgow on November 13 with a Climate Pact that continues the evolution of global climate policy over the past 30 years.… More
On Monday, Boston released a draft of the first phase of regulations intended to implement the amended BERDO ordinance signed by then-Mayor Janey in October. 
The first phase of the regulations is focused only on reporting issues. It will address
The rationale for this narrow focus is that the City wants these regulations in place promptly,… More
I’ve written a lot about how the developing science around particulate exposure supports making the PM2.5 NAAQS more stringent. So it won’t come as a surprise that a new study published in the Proceedings of the National Academy of Sciences indicates that the benefits of on-road emissions reductions from 2008 to 2017 could be measured in the hundreds of billions of dollars and almost 10,000 fewer deaths. … More
Yesterday, the Baker administration announced that the Transportation Climate Initiative is dead in Massachusetts, at least for now. This is not a surprise, particularly after Governor Lamont’s statement that there is no political support for TCI in Connecticut. It is difficult to implement a region-wide program to reduce carbon emissions from transportation fuels when only one state in the region is prepared to do so. 
The administration tried to put the best face on the failure of TCI,… More
The IPCC has released its Sixth Assessment Report on the physical science basis of climate change. I would say that it makes sobering reading, except any sane person’s immediate response to AR6 would be to go out and have any number of stiff drinks. 
Here are a number of the lowlights:
It is unequivocal that human influence has warmed the atmosphere, ocean and land.… More
On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.” Given the growing recognition of the significant role FERC is going to have in combatting climate change, it’s an important decision. 
FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future climate change impacts.” However,… More
Last week, Judge Yvonne Gonzalez Rogers ruled that the Berkeley ordinance essentially banning use of natural gas in new construction was not preempted by the Energy Policy and Conservation Act. I’m not here to opine on the legal merits of the decision. I will note note that the Judge’s reliance on textual analysis and the asserted federalist bent of SCOTUS’s conservative wing might give this opinion more life than one would otherwise expect – though I’ll also note that the conservative wing’s federalist proclivities often seem to turn on whether they agree with the underlying policy at issue. … More
This week, Judge Karen Green denied Exxon Mobil’s motion to dismiss claims brought by Massachusetts under its Consumer Protection Act. The complaint alleges that Exxon Mobil both mislead Massachusetts investors in its marketing to them of Exxon Mobil securities and mislead Massachusetts consumers in its marketing of its products to those consumers. Judge Green rejected Exxon Mobil’s arguments that it was not subject to jurisdiction in Massachusetts with respect to these claims. … More
Late last month, the Washington Legislature passed the “Climate Commitment Act”, a piece of sweeping climate legislation that includes, among other provisions, an economy-wide cap-and-trade system. Washington was not far behind Massachusetts, which enacted its “next generation roadmap” bill in late March. This friendly competition among states to move towards net zero economies as aggressively as possible is certainly a good thing.… More
I noted in yesterday’s post about the NHTSA proposal to withdraw the SAFE I Rule that EPA was expected to follow the NHTSA action by restoring the Clean Air Act Section 209 waiver for California’s Advanced Clean Car program. 
The ink was barely dry on the post when EPA released a Notice that was considering doing just that.
I have always thought that EPA’s waiver withdrawal stood on very shaky ground – shakier even than the NHTSA preemption argument made in the SAFE I rule. … More
Last week, the National Highway Traffic Safety Administration proposed to withdraw Part I of the Trump Administration’s SAFE Rule, in which EPA had concluded that California’s regulation of motor vehicle GHG emissions was preempted by the Energy Policy and Conservation Act. It’s not a surprise, given that Executive Order 13990 specifically directed NHTSA to revisit the SAFE I Rule. 
It is interesting, if not ironic,… More
The President today formally announced that the United States was pledging to reduce its emissions by 50% from 2005 levels by 2030. 
The announcement isn’t a surprise, but that doesn’t lessen its importance. So large a reduction will be a heavy lift, particularly in a federal system where many states are still not exactly with the program.
So how will this Administration get us on a path to 50%?… More
At a press briefing in India yesterday, John Kerry, 
President Biden’s Special Presidential Envoy for Climate was asked by an Indian journalist about carbon pricing. Here’s part of his response:
President Biden believes that at some point in time we need to find out a way to have a price on carbon that’s effective. He hasn’t decided or made an announcement about it,… More
It’s not always the case, but my speculation about the Massachusetts climate bill was correct. On Friday, Governor Baker 
signed it into law. If I haven’t succeeded in making this clear previously, I want to emphasize that this is a really far-reaching piece of legislation. It commits Massachusetts to a very aggressive timetable for reducing GHG emissions. It species a number of specific policies,… More
In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.” I am pleased to say that Zach’s diagnosis was correct. The climate bill is very much alive. 
Last week, the Legislature passed a new version of the bill, which adopted most of the Governor’s technical suggestions and almost none of his substantive changes. … More
According to E&E News (subscription required), FERC yesterday, for the first time, assessed the impacts of a gas pipeline’s downstream GHG emissions. (As of this writing, the decision is not yet available on FERC’s web site.)
Former chair James Danly was unhappy, calling the decision “legally infirm.” I question Commissioner’s judgment on this one.
Neil Chatterjee provided the Republican vote in favor, saying that he made a pragmatic decision,… More
On March 1, the Transportation Climate Initiative jurisdictions released a draft “model rule” that would provide a template for individual state rules governing the operation of the TCI Program. 
Although only three states and the District of Columbia committed in December 2020 to implement TCI-P, the announcement on Monday indicated that the model rule “was developed by twelve” TCI jurisdictions.” I guess that eight states like the model rule – just not enough at this point to commit to implementing it.… More
Last month, I posted about the Biden administration’s effort to develop a new estimate of the social cost of carbon. The EO requires a new interim SCC within 30 days and a new longer-term SCC by January 2022. Earlier this week, Joseph Stiglitz 
and Nicholas Stern – it doesn’t get more impressive than a Nobel prize winner and an actual Lord – released a National Bureau of Economic Research Working Paper (non-academics can download up to three papers free per year) in which they argue that,… More
Yesterday, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad. It’s even more comprehensive than last week’s order. Indeed, my main reaction to the order isn’t to any of the specific provisions. It’s one simple realization – he really means it. And I think that’s the point. There is no question at this point that President Joseph Robinette Biden,… More
Among the important provisions of President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is the requirement to review and revise estimates of the social cost of carbon (and nitrous oxide and methane). The order establishes a working group, co-chaired by the Chair of the Council of Economic Advisers, the Director of OMB, and the Director of the Office of Science and Technology Policy. … More
Yesterday, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. There’s a lot in it, so I think I’m going to have to take it in blog-sized bites. Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.
Why start here?… More
Yesterday was the last full day of President Trump’s term. On environmental issues, it closed on a fitting note – another major judicial defeat. The District of Columbia Court of Appeals vacated EPA’s Affordable Clean Energy Rule. In doing so, the Court – thanks to what appears to have been a misguided strategic decision by EPA – confirmed EPA’s authority to use a range of tools to regulate greenhouse gases under the Clean Air Act.… More
Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level. And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.
Two weeks ago,… More
Yesterday, Massachusetts released its “2050 Decarbonization Roadmap.” 
I’m tempted to call it a tour de force. At the very least, it’s jam-packed with important issues. One of the most valuable aspects of the Roadmap is its discussion of the potential tradeoffs among the different paths towards a decarbonized economy. Acknowledging that the Roadmap contains much more good stuff than can be summarized in a single post,… More
Today, three of the states participating in the Transportation Climate Initiative – Massachusetts, Connecticut, and Rhode Island – and the District of Columbia released a Memorandum of Understanding describing a “cap and invest” program intended to reduce carbon emissions from fossil fuels and raise money “to accelerate the transition to an equitable, safe, and affordable low-carbon transportation sector.” Here are the big takeaways:
The Lancet’s Countdown on Health and Climate Change for 2020 offers a pretty sobering assessment of the impacts of climate change. As I noted the last time I posted about one of these reports, it’s important to remember that, while flooding and sea level rise get much of the attention, heat waves cause much of the harm to public health.
I found this statistic particularly sobering.… More
Since I noted earlier this week the announcement by ConocoPhillips that its “ambition” is to reach net-zero carbon for its own operations by 2045-2055, it seemed appropriate also to note that BLM has now approved the Willow Master Development Plan, which will authorize ConocoPhillips to produce almost 600 million barrels of oil over 30 years in the National Petroleum Reserve in Alaska. 
I commented on this project a few months ago,… More
Last week, ConocoPhillips 
announced a goal of reducing its emissions to net-zero by 2045-2055. It’s a significant step and so it is important to note both what is in the plan and what is not.
First, what is in the plan?
All of these are good steps. … More
Last week, Judge Scott Skavdahl vacated BLM’s 2016 methane Waste Prevention Rule. 
The Judge spends 10 pages documenting the “loopty-loops” of the litigation surrounding the 2016 Rule and the Trump administration’s efforts to rescind the rule. Here, I’m with him. It’s difficult to review the tangled process of judicial review of this rule without being embarrassed for our judicial system.
Judge Skavdahl then spent 47 pages on the merits. … More
Last week, EPA finalized its rollback of Obama administration regulations governing methane 
emissions from the oil and gas industry. The move is not exactly a surprise. Regarding the purpose of the rollback, I stand by my take on the proposed regulations. This regulation was promulgated for two purposes. First, it provides generic red meat to those who think government regulation is inherently a bad thing. … More
In 2015, I noted that the then-Governor of Alaska had decided that it was necessary to increase drilling for oil in Alaska to raise the money necessary to cope with the impact of climate change. I suggested that Governor Walker’s solution to the problem of funding climate adaption might be considered ironic. 
Welcome to the Department of Irony Department, also known as Alaska Climate Adaptation Rev 2.0.… More
Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.” Although Judge Rogers found many flaws in the rescission rule, I think that two are key.
The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste. I think that the Court’s holding is correct,… More
Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Foreign Affairs Doctrine. Judge Shubb had previously ruled that the Agreement did not violate either the Treaty Clause or the Compact Clause.
There are few people left, at least in my orbit, who don’t share the goal of prompt decarbonization of the economy. The quaintly named $64,000 question ($64 trillion question?) is how we get from here to there.
Today, the New England Power Generators Association released a report prepared by Analysis Group 
that explains how an economy-wide price on carbon can help New England do just that. … More
The 9th Circuit Court of Appeals has issued two rulings that, combined with the recent 4th Circuit ruling in the Baltimore case, makes it more likely that state and local public nuisance climate cases will be heard in state courts, rather than federal courts. The two California cases got to the 9th Circuit via different routes.
San Mateo v. Chevron is on all fours with the recent 4th Circuit decision. … More
Earlier this month, I reported on a study showing that methane emissions from Permian Basin fracking operations were quite high. Since that study acknowledged that there are reasons to think that methane emissions from the Permian Basin may be higher than from fracking elsewhere, it seemed worth noting that an EDF study published last week indicated that methane emissions from oil and gas wells in Pennsylvania 
(from both fracked wells and conventional wells) are 16 times greater than what has been reported to the Pennsylvania DEP. … More
It is generally understood that the shift from coal to gas has helped, at least in the short run, to reduce emissions of greenhouse gases. It is certainly true that combustion of natural gas releases less CO2 per unit of energy than combustion of coal. Unfortunately, that’s not the entire answer. A recent study published in Science Advances indicates that 3.7% of natural gas produced in the Permian Basin ends up in the atmosphere.… More
EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule. Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards. Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.
I referred to George Orwell on this blog as recently as January,… More
Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Treaty Clause or the Compact Clause. 
These are not parts of the Constitution that are normally a focus of environmental law classes, so take what follows with an appropriately sized grain of salt.… More
This week, the Massachusetts Attorney General’s office 
released a white paper documenting the results of a symposium convened last fall to discuss how electric markets should be organized to manage the transition to a “low / no-carbon future.” Policy wonks, such as myself, will find it fascinating reading, though it is moderately dense stuff.
Seriously, it is important to acknowledge that these issues are as complex as they are important. … More
Last week, the 4th Circuit Court of Appeals affirmed the District Court decision remanding Baltimore’s climate change litigation to state court. I wouldn’t read too much into the decision, which is founded on the niceties of federal law governing removal of cases to federal court. 
Basically, federal law severely limits courts of appeal authority to reverse erroneous remand orders:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,… More
The attack on science by this administration is not news at this point. Part of that attack has been to increase the number of industry scientists on EPA’s Science Advisory Board. 
I have no objection per se to additional industry representation on the SAB; a lot of good science gets done by industry. There are dangers, though. When Tony Cox, who is neither a statistician nor an epidemiologist,… More
Yesterday, I noted with enthusiasm the announcement that the states participating in the Transportation and Climate Initiative had released a new draft Memorandum of Understanding outlining the framework of what “RGGI for cars” might look like. I also provided a cautionary note that the politics of TCI would be tricky and that imposing a carbon fee sufficient to attain the goal of funding an effective, low-carbon, transportation system for New England in the 21st Century might prove difficult. … More
The 12 states and the District of Columbia participating in the Transportation and Climate Initiative announced today the release of a new draft Memorandum of Understanding that outlines the framework of what they are calling a cap and invest program for cars and trucks. In short, it will require persons selling gasoline and on-road diesel at the wholesale level to hold allowances – which will be auctioned – in order to continue to sell such on-road fuels. … More
The New York Citizens Budget Commission has released a report regarding the state’s ability to meet its ambitious GHG reduction targets. 
It’s sobering reading. The CBC states that it is “uncertain” whether New York can meet those goals. It identifies four reasons:
Immense scaling up of renewable generation capacity is necessary and is likely infeasible by 2030.
The focus on building renewable resources,… More
Last week, BioScience published the “World Scientists’ Warning of a Climate Emergency.” It’s actually a nice piece of work – short, readable, to the point. In barely 4 pages, it concisely summarizes the fine mess we’ve gotten ourselves into. It also provides suggestions for actions to take to “lessen the worst effects.” The suggestions also pull no punches:
Last week, Boston released its Climate Action Plan 2019 Update. 
The Update identifies “priority actions” for the next five years necessary to put Boston on a trajectory towards carbon neutrality by 2050. There’s a lot in the Update, but because it states that 71% of Boston carbon emissions come from buildings and it thus leads with its discussion of buildings, I’m going to focus there.… More
Yesterday, EPA and the National Highway Traffic Safety Administration released the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” more succinctly known as the withdrawal of the California’s § 209 waiver under the Clean Air Act. As part of that announcement, EPA Administrator Andrew Wheeler 
was quoted as saying that “California has the worst air quality in the United States.”
And why is this ironic? … More
The Carbon Leadership Council, everyone’s favorite group of former grand poohbahs, 
is still working at building support for its “carbon dividends” plan. Hope springs eternal. And I don’t mean to make light of the CLC’s efforts. We can use all the hope we can get.
The CLC has not make any huge changes to the plan, but they have tweaked it a bit and run numbers again. … More
Earlier this week, the Department of Energy withdrew definitions of “general service lamps” and “general service incandescent lamps” promulgated under the Obama administration. The effect is to eliminate requirements that such lamps move to more energy-efficient bulbs. Examples include recessed fixtures, referred to, at least in my house, as “cans,” and chandeliers.
On this one, I’ll leave the legal issues to others. To me, the noteworthy aspect was that DOE is defending the rule,… More
Last week, EPA proposed to eliminate regulation of methane emissions from the oil and gas industry. The most noteworthy response to the proposal came from the large producers. ExxonMobil, Shell, and BP all oppose the rollback. In fact, Shell went on record not that long ago requesting the EPA increase the stringency of oil and gas methane regulation. Anyone else hear an echo of the large automakers’ response to the Administration’s efforts to relax fuel efficiency standards?… More
I’ve always understood that heat causes more fatalities than other weather-related phenomena. It’s only going to get worse with climate change. If you thought that climate change was all about rising sea levels, think again. Earlier this week, the Union of Concerned Scientists released “Killer Heat in the United States: Climate Choices and the Future of Dangerously Hot Days.” I’d like to say it makes chilling reading. … More
I’ve posted a number of times about the coming wave of efforts to reduce or eliminate GHG emissions from buildings. Notwithstanding Washington’s current intransigence, the electric sector is now decarbonizing. With that under way, attention next focused on the transportation sector. That’s moving along with efforts in California and the northeast and mid-Atlantic states pursuing the Transportation Climate Initiative.
However, it’s very clear that addressing the electric sector and the transportation sector still isn’t going to be enough. … More
ClimateWire (subscription required) reported today that Russia 
plans to join the Paris Agreement. Apparently, Russia is doing so because it sees a global move to a low-carbon economy and it doesn’t want to be left behind.
So, if Putin manipulated the 2016 elections to make Donald Trump president, did he do so to make it easier for Russia to get a leg up on the US in building the low-carbon economy of the future?… More
Bloomberg Environment (subscription required) is reporting this morning that Senator Chris Coons 
is trying to persuade Democrats that they should agree to limit EPA’s authority to regulate greenhouse gases in return for GOP support for a carbon tax. As regular readers will know, I’ve supported for years the idea of a grand bargain such as Senator Coons is now proposing.
I have never understood environmentalists’ opposition to such a deal. … More
Here’s my take on the Affordable Clean Energy Plan.
Who cares?
On the merits, it does almost nothing. It requires only that states impose heat rate improvement requirements on coal-fired power plants. It’s not going to meaningfully lower emissions. Administrator Wheeler has trumpeted that emissions will be 35% lower in 2030 than in 2005, but the ACE rules contribute almost nothing to that result.… More
Yesterday, EPA finalized its Affordable Clean Energy rule, which will replace the Obama Clean Power Plan. More on ACE later. For now, I just want to use the ACE roll-out to contrast what’s happening at the federal level with what’s happening in the rest of the world – specifically, in this case, in Boston.
While President Trump is throwing coal a “lifeline,” the Carbon Free Boston: Transportation Technical Report 
is discussing banning internal combustion automobiles from the City of Boston by 2050. … More
Greenwire (subscription required) reported today that the White House blocked testimony by Dr. Rod Schoonover of the State Department to the House Intelligence Committee on “The National Security Implications of Climate Change.” This by itself might be unsurprising, if nonetheless depressing. What’s truly amazing, however, is that Greenwire contains a link to the draft testimony, together with the NSC comments.
As regular readers of this blog have probably figured out,… More
On Monday, District Judge Haywood Gilliam imposed a schedule on EPA for review of state plans under EPA’s 2016 rule for emissions from municipal solid waste landfills. The ruling is notable for two reasons.
Because EPA did not dispute that it had missed certain deadlines, its first line of defense wasn’t that it complied with the statute; it was that the states challenging EPA’s delay did not have standing. … More
After receiving an analysis showing that shutting the Jim Bridger 
and Naughton coal-fired electric generating plants in Wyoming would save ratepayers money, PacificCorp, the owner of the plants, announced that it would shut the plants and the mines that supply them as early as 2022. Mark Gordon, the Republican Governor of Wyoming is not happy.
According to Greenwire (subscription required), Gordon said that:
I will advocate for a positive path where this utility and others are part of developing solutions rather than destroying communities and delaying progress on meaningful technological advances that keeps coal as part of a diverse energy portfolio and also address climate change. … More
In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land 
until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the impact of coal leasing on climate change.
Times do change. In 2018, DOI Secretarial Order 3348 eliminated the moratorium and the requirement to prepare a PEIS. Litigation ensued.
Last week,… More
I don’t work in the oil and gas industry. This lede from Bloomberg Environment (subscription required) may not be news to anyone in the industry, but it absolutely blew me away:
America’s hottest oil patch 
is producing so much natural gas that by the end of last year producers were burning off more than enough of the fuel to meet residential demand across the whole of Texas.… More
The Massachusetts Department of Energy Resources has released its Clean Peak Standard Straw Proposal, 
providing its thinking on the implementation of that part of An Act to Advance Clean Energy, from 2018. As a reminder, the basic idea is that a “Qualified RPS Resource,” installed after January 1, 2019, may obtain “clean peak certificates” for energy generated during seasonal peaks. Existing Qualified RPS Resources may obtain CPCs if they are paired with battery storage installed after January 1,… More
On Friday, Connecticut announced that it had reached agreement with Dominion, Eversource, and United Illuminating to keep the Millstone nuclear plant operating for 10 more years. 
Not coincidentally, on the same day, the six New England Governors announced their “Commitment to Regional Cooperation on Energy Issues.” An important element of that commitment is to work with ISO New England:
to evaluate market-based mechanisms that value the contribution that existing nuclear generation resources make to regional energy security and winter reliability.… More
Last week, a federal judge once more rejected the Environmental Assessment for the expansion of the Spring Creek Mine in Montana. 
The case does not really break any new ground, but it does add to the growing number of cases in which courts have rejected federal action approving a variety of large facilities related to energy production in one way or another. The crux of this case was the failure of the EA to consider downstream,… More
Yesterday, Ed Markey and Alexandria Ocasio-Cortez released a proposed congressional resolution providing a framework for the so-called Green New Deal. 
I am pleased to note that it would not exclude use of nuclear power or large-scale hydropower. Neither would it preclude use of market-based approaches towards regulating carbon. Of course, it also doesn’t advocate for putting a price on carbon.
I realize that this is simply a resolution and not proposed legislation. … More
A few weeks ago, a coalition of 626 groups sent a letter to Congress, setting forth some principles concerning what should and should not be part of a Green New Deal. Among the policies that apparently should not be part of a Green New Deal are nuclear power, large-scale hydropower and –wait for it – any use of market-based mechanisms. … More
Boston’s Green Ribbon Commission has just released Carbon Free Boston, 
which outlines a pathway to a carbon-free city by 2050. It’s a thoughtful and careful report. My immediate reaction was two-fold. Of course we have to do all this and of course this will be nearly impossible.
The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:
The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More
On Tuesday, nine Northeastern and Mid-Atlantic states participating in the Transportation Climate Initiative 
– notably not yet including New York – announced that they:
will design a regional low-carbon transportation policy proposal that would cap and reduce carbon emissions from the combustion of transportation fuels through a cap-and-invest program or other pricing mechanism.
It’s a major development. Electric sector emissions have dropped substantially in recent years and now account for less than half the GHG emissions resulting from transportation. … More
Last week, the Massachusetts Department of Energy Resources released its Comprehensive Energy Plan. It’s a generally solid piece of work, even if it doesn’t say anything hugely surprising. Its various policy recommendations can be summarized fairly easily: electrify and conserve.
The first recommendation is nicely illustrated by this pie chart from the CEP. In 2016
, only 17% of Massachusetts’ energy demand of 1,074 trillion BTUs was from the electric sector.… More
Members of the New York City Council have introduced a proposal to impose mandatory building energy efficiency standards. The standards, which vary by building type and use, would apply to buildings greater than 25,000 square feet, though rent-regulated buildings would be exempt. 
The real estate industry is a powerful force in New York City and I believe that our current President may have some views on this legislation. … More
Last week, the government released the Fourth National Climate Assessment. Not surprisingly, it’s largely consistent with the prior assessments. As other commenters have noticed, the primary difference from prior reports is one of emphasis; the Assessment now includes substantial information about the likely cost to the economy if we fail to address climate change.
I had been wondering whether it was worth doing a post about the assessment – and then I saw that the President,… More
The Union of Concerned Scientists just released a report, The Nuclear Power Dilemma. 
As Ken Kimmell, UCS’s President, said in a blog about the report, it:
calls for proactive policy to preserve nuclear power from existing plants that are operating safely but are at risk of premature closures for economic reasons or to ensure that lost nuclear capacity is replaced with carbon-free sources.… More
The Energy Information Administration today released CO2 emissions numbers through 2016. While I could rant about the 21.4% increase in GHG emissions in Florida since 1990, as compared to the 23.7% decrease in Massachusetts over the same period, when Florida faces even great climate risk than Massachusetts, I won’t do that.
Today’s rant is about transportation GHG emissions. While there’s a lot of fun data in the EIA report,… More
It’s probably not news that the immediate prospects for a carbon tax aren’t great. I still think that it’s going to seem impossible until, fairly suddenly, it actually happens. Hope springs eternal.
In any case, there has been some news on the carbon tax front this month. Here’s the quick summary. The Climate Leadership Council, everyone’s favorite collection of Republicans who used to matter, released The Dividend Advantage,… More
As Carol Holahan discussed, the 7th Circuit last month affirmed the Illinois zero emission credit program. Now the 2nd Circuit has weighed in, agreeing with the 7th Circuit and affirming the similar New York State ZEC program. 
Whatever one’s views on the merits, it seems pretty clear at this point that state programs to encourage generation of renewable or zero-emissions energy will be upheld by the Appeals Courts,… More
Earlier this week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement. I don’t doubt that the CLC analysis is right. If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.… More
EPA has finally released its proposed replacement for the Clean Power Plan, 
dubbed the Affordable Clean Energy Rule. More affordable than clean, I’d say.
What’s really telling is that EPA’s own analysis shows that the CPP would have delivered significantly more benefits than ACE. And that goes for both direct benefits in GHG emissions reductions and indirect benefits related to reductions in traditional criteria pollutants.… More
So the Trump administration has formally proposed to roll back CAFE standards for model years beginning in 2021. And California has announced its intention to start separately enforcing its own standards if the federal standards are weakened. Trying to sort it all out, I was somehow reminded of the famous Winston Churchill 
statement:
Many forms of Government have been tried, and will be tried in this world of sin and woe.… More
According to Greenwire (subscription required), EPA has acknowledged that it possesses no records providing a factual basis for claims made by Scott Pruitt 
that GHG emissions are not a primary contributor to global warming.
As we noted in June, EPA opposed a FOIA request seeking documents supporting Pruitt’s statements, and the Court ordered EPA to provide responsive documents. Except that,… More
On Thursday, Judge John Keenan dismissed New York City’s climate damages law suit against five oil majors. 
The basis for the decision was the same as in last month’s decision dismissing similar claims in California:
Late last month, when I reported on the dismissal of the California climate change public nuisance litigation, I stated boldly that we should not expect advocates to stop trying. I did not really think I was going out on a limb with that prediction, but I also did not know that I’d be proved correct so quickly. Less than a week later, on July 2, the State of Rhode Island brought its own public nuisance claim.… More
As a follow-up to my June 27 post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. … More
On Monday, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies. The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise. 
Why did he dismiss the case? Simple. The courts are not the right forum in which to address the problems of climate change. … More
Yesterday, June 7, 2018, the Massachusetts the Ways and Means Committee released S2545, “An Act to promote a clean energy future.” The far-reaching bill has the potential to provide new opportunities for renewable resources and in so doing, may also affect the competitive markets in the region. Among other things, the bill would:
Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”
I’ve done a fair number of FOIA requests in my time. … More
Last week, FERC rejected arguments that the Environmental Assessment for the New Market Project should have considered upstream and downstream climate impacts. 
It also announced as policy that it would not in the future analyze:
the upstream production and downstream use[s] of natural gas [that] are not cumulative or indirect impacts of the proposed pipeline project, and consequently are outside the scope of our NEPA analysis.… More
There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.
I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron,… More
Late last month, Judge Brian Morris granted summary judgment to plaintiffs on three claims alleging that the environmental impact analysis supported BLM’s Resource Management Plans for managing coal leases in the Powder River Basis 
were flawed. It’s a very thoughtful decision. Judge Morris rejected three of plaintiffs’ claims and did not provide the injunctive relief that they sought. Nonetheless, it’s an important setback for BLM and further evidence that courts are going to require more of BLM in assessing climate impacts associated with energy resource development.… More
Just a few weeks ago, Federal Judge William Alsup ruled that claims brought by San Francisco and Oakland against certain large oil companies belonged in federal court, because they raise issues of federal common law. Last week, in a similar law suit asserting similar claims, Judge Vince Chhabria remanded the case to state court. Why? Because there is no federal common law applicable to such climate-related claims. … More
Yesterday, the 9th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change 
had violated their constitutional rights. It appears that the plaintiffs will get an opportunity to prove their claims.
It’s important to remember that this opinion is not about the merits. … More
Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance 
claims against some of the world’s largest fossil fuel producers to state court. However, I’m not sure that this is a victory for the oil companies. This might be more of a “be careful what you wish for” scenario.
As I’ve noted previously, the fight over the Trump Administration’s effort to change course on a number of Obama environmental initiatives is going to focus in significant part on FCC v. Fox Television Stations, in which the Supreme Court stated that agencies are free to reconsider policies so long as:
the new policy is permissible under the statute, there are good reasons for it,… More
While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive. There were two developments worth noting this month.
First, Bloomberg Markets reported that BlackRock, 
which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures. … More
The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), 
has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report. Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More
The Houston Chronicle reported yesterday that electric generation capacity from wind now exceeds that of coal in Texas. That’s not even counting Vistra’s recent announcement that it intends to close three coal-fired plants. 
To those who might point out that wind is intermittent and it thus has lower capacity factors, the same Chronicle story reports at least one expert prediction that wind generation will exceed that of coal by 2019.… More
Yesterday, eight states in the Transportation Climate Initiative 
issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation. The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”
Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this: RGGI for transportation.… More
Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands. If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.
The case is pretty simple and the outcome should not be a surprise. … More
On Monday, EnergyWire (subscription required) reported that New York City Mayor Bill de Blasio has unveiled a plan to cap fossil fuel use in buildings in New York City. (I haven’t seen the specific plan, but it is referenced in City’s overall plan, “1.5°C: Aligning New York City with the Paris Climate Agreement,” that the City just released.) 
The building plan is based on data gathered as a result of local ordinances requiring buildings with more than 25,000 square feet to report energy and water use. … More
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production. 
The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More
Bloomberg reported earlier this week that:
China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.
It’s pretty well known that China is not the world’s most transparent government. Thus, I won’t fully believe until I see it. On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More
Earlier this month, State Street Global Advisors 
joined the chorus of money managers urging corporate boards, particularly those in “high-impact sectors” – meaning “oil and gas, utilities and mining” – to do a better job reporting risks related to climate change. SSGA’s recent “Perspective on Effective Climate Change Disclosure” is a serious document. To put it in formal technical jargon, SSGA whacks the heck out of most companies in high-impact sectors,… More
Yesterday, Massachusetts and the eight other New England and Mid-Atlantic states that participate in the Regional Greenhouse Gas Initiative announced a proposed plan for the continued implementation of RGGI (the region’s cap-and-trade program) between the years 2020 and 2030. The plan calls for an additional reduction of GHGs by 30% by 2030, beyond the RGGI 2020 levels. Emissions would be capped at about 75 million tons in 2021,… More
Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, 
part of the Southeast Market Pipelines Project. If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.
(Full disclosure – Foley Hoag represents NextEra,… More
Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining had violated NEPA in approving a modification of a mining plan to expand the 
Bull Mountains Mine No. 1. The decision is important for two reasons.
First,… More
Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here. So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.
(Renewed caveat: This firm represents,… More
Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy. Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.” 
(Caveat: This firm represents,… More
On Friday, Greenwire published a very interesting interview with Jerry Taylor, 
every climate advocate’s favorite Libertarian. The interview chronicles Taylor’s journey from climate skeptic to climate believer. For those of you who don’t know his story, Taylor left the Cato Institute to found the Niskanen Center, where he works on promoting Libertarian solutions to climate change.
I’ve seen stories about Taylor before and Greenwire’s piece is an excellent interview (and thanks to Greenwire for taking this out from behind its pay wall and making it available for free!). … More
We previously noted BlackRock’s recent shareholder votes in favor of increased reporting of climate risks by ExxonMobil and Occidental. Now, BlackRock has stepped it up a notch by including “vote bulletins” on its investment stewardship web page. The bulletins will be provided:
in relation to certain high profile proposals at company shareholder meetings. Although we currently explain many of these votes in our quarterly reports,… More
In March, I noted BlackRock’s increasing concern over climate. One element of its statement was “potential support for shareholder resolutions on climate risk”, where “management’s response to our prior engagement has been inadequate. Turns out that they meant it.
Earlier this month, shareholders at Occidental Petroleum approved a climate reporting proposal – over the directors’ opposition – proposed by 
CalPERS and supported by BlackRock,… More
Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust 
obligation it owes to US citizens to protect the atmosphere from climate change. Not surprisingly, the government sought interlocutory appeal. On Monday, Magistrate Judge Thomas Coffin issued a Finding and Recommendation that the request for interlocutory appeal be denied. … More
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. 
Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
BlackRock, which manages more than $5 trillion in assets, has released a statement on how it “engages with climate risk.” The statement has three main elements.
According to the American Wind Energy Association blog, installed wind capacity in the United States has reached 82,000 MW. That puts it past the 80,000 MW of installed hydropower capacity and makes wind the largest installed renewable energy resource. 
While the overall number represents a significant milestone, some of the details are interesting as well. Wind represents 5.5% of US generation. Moreover,… More
In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood. They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.
The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage 
could play a role in mitigating the need for new generation sources to meet peak demand.… More
Earlier this week, the Climate Leadership Council rolled out The Conservative Case for Carbon Dividends 
(note the absence of the “T” word in that title!). It’s a serious proposal and, if we lived in a world of facts, rather than alternative facts, it would be a useful starting point for a discussion.
Here are the highlights:
This week, the Department of Energy finalized regulations to increase energy efficiency for central air conditioners and heat pumps. 
The regulations apply to products manufactured or imported into the United States beginning in 2023. DOE estimates that, over the following 30 years, the regulations will reduce GHG emissions by 188.3 million metric tons, and will also result in similarly substantial reductions in emissions of conventional pollutants.… More
As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain. However, that does not mean that MassDEP can simply take the easy way out. After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More
When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given. To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.
I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts. … More
While speculation is rampant regarding just far President Trump will go to roll back progress on climate change in the United States, Nicolas Sarkozy has fired what might be called a metaphorical shot across Trump’s bow. In a recent interview, Sarkozy, who is running once again in the French presidential race, stated that, if the United States jettisons the Paris agreement, Europe should impose a carbon tax of 1%-3% on goods from the United States.… More
Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978. 
Why? The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.
The real question is whether this is good news or bad news.… More
Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.” The EIA gave three reasons for the drop in CO2 emissions. 
On Monday, the TVA announced that Watts Bar Unit 2 
had successfully completed what is known as its final power ascension test. It is now producing 1,150 MW of power in pre-commercial operation. Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage. It’s been 20 years since the last nuclear facility came online in the United States.… More
When RGGI 
was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy. Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work. The RGGI states were to serve as a model,… More
Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.” 
EO 569 will advance climate policy in Massachusetts in a number of important ways. It also leaves much to be accomplished by MassDEP. Here are the highlights:
Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategy. 
It’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050. The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.
On the plus side:
Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead. In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants 
from such redefinition of the source. … More
Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment. This is a big deal in its own right, simply because the numbers are really large – according to DOE, the rule will save 2.89 quadrillion BTUs over the lifetime of equipment purchased under the rule. It’s a reminder that energy efficiency remains a key to reducing carbon emissions.… More
The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights:
If you needed any further proof that energy 
law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you. The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:
no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More
On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act 
by failing
To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year,… More
Dylan Thomas 
said “Do not go gentle into that good night.” Obama’s EPA is taking that advice to heart, pushing forward aggressively on its climate change agenda, even as January 2017 approaches. On Thursday, EPA issued its final rule promulgating New Source Performance Standards for methane emissions from oil and gas facilities. The lengthy and complex rule is too long to summarize here, but you can find the Cliff Notes version in EPA’s fact sheet.… More
This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems. 
I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.… More
This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21. MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.” 
The NPRM addresses this criterion,… More
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust 
case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
The complaint here is similar to, but broader than, others of its ilk. As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere. … More
The sixth installment of our Paris climate change negotiations tracker is now available. It includes not just a complete look back at the results from Paris, but also a quick postscript on the impact of the Clean Power Plan stay order from the Supreme Court on the current prospects for successful implementation of the Paris Agreement.
Click here to download the report:
Yesterday, the Supreme Court stayed EPA’s Clean Power Plan 
rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.
Everyone, supporters and opponents alike (and yours truly), thought that there was no possibility that the Court would grant a stay.… More
Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020. The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”. The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.
While that’s the main take-away, it really is a useful report,… More
Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the Court simply stated that “Petitioners have not satisfied the stringent requirements for a stay pending court review.”
The Court did expedite briefing,… More
In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach. And what, you may ask, is § 115? Even the most dedicated “airhead” has probably never worked with it.… More
So COP21 resulted in an agreement. What’s a poor in-the-trenches lawyer to make of it? I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected. For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post. As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:
It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More
I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review. I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible). The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.… More
Yesterday’s Boston Globe had an op-ed by Joshua Goldstein and Steven Pinker concerning some “Inconvenient truths for the environmental movement.” I’m sorry to say that I agree with pretty much every word of it. Why am I sorry? Because Goldstein and Pinker make clear – even though they don’t mention his name – that the Pope was completely wrong in his prescription for addressing climate change. … More
Last week, a trial judge in Washington State, in Foster v. Washington Department of Ecology, ruled that the Public Trust Doctrine requires the State of Washington to address climate change more aggressively. Greenwire’s headline for its story on the decision was “Kids declare victory in Wash. warming lawsuit.” I’m here to throw a little cold water on all the excitement. Why?
If you want to know what how a rational optimist defines success for COP21, 
take a look at Rob Stavins’s latest post. Here’s his “Paris Scorecard” for what success will look like:
A few months ago, I asked whether climate change nuisance and public trust litigation might have something in common with litigation challenging bans on same-sex marriage. The idea was that both types of litigation seemed hopeless at the start and received very frosty receptions from the courts. However, in the case of same-sex marriage, plaintiffs kept plugging away and, much sooner than most people expected, a tipping point was reached. … More
So the Clean Power Plan has been published in the Federal Register. For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP.
Not surprisingly, given the number of suits brought before the CPP was even finalized, opponents were literally lining up at the courthouse steps to be the first to sue. … More
The fourth installment of our Paris climate change negotiations tracker is available.
Some progress seems to be occurring, but it’s certainly not obvious that COP21 will result in an agreement sufficient to ensure that it will result in meeting a “below 2°C” objective.
Click here to download the report:
… More
Governor Baker recently submitted Senate Bill No. 1965 to the Legislature. It calls for utilities to solicit long-term purchases of renewable energy. We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period. Two rationales are often provided to justify the large purchase of Canadian hydropower. First, cheap hydropower will ameliorate the high cost of electricity. Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More
Yesterday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register. The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”
Really? Tell me something I did not know.
I’m sorry. The CPP is a far-ranging rule. … More
When the Regional Greenhouse Gas Initiative 
was first implemented, there were questions regarding how much of an impact it would actually have on GHG emissions. I recall Ian Bowles, then Secretary of Environmental Affairs in Massachusetts, saying that, while reductions would happen, the main purpose was to provide a template and to demonstrate that an emissions trading program could be implemented successfully.
Those doubts were only heightened when a combination of cheap gas and the Great Recession were understood to have caused low allowance prices in the RGGI auction. … More
Having gotten the Clean Power Plan out the door, EPA has moved on to another target of President Obama’s Climate Action Plan: landfill methane emissions. 
Late last week, EPA proposed both new emission guidelines for existing landfills and a supplemental proposal to modify the new source performance standards for new or modified landfills. The landfill rule is a somewhat easier lift than the Clean Power Plan.… More
So the Clean Power Plan is out. It’s difficult to be pithy about such a big, sprawling, mess, 
other than to say that it’s probably about as good as it could be, though that may not be enough. Here are a few items that have caught my eye so far:
On Friday, Judge Claire Eagan dismissed Oklahoma’s latest challenge to EPA’s Clean Power Plan. 
Yes, that plan. The one that hasn’t been promulgated yet.
Following rejection by the D.C. Circuit Court of Appeals of a prior law suit, Oklahoma tried again, this time on what it presumably hoped would be more friendly ground, the Northern District of Oklahoma. Not so much.… More
The Baker Administration announced on July 9 that it filed a bill for sourcing long-term hydroelectric power in the Commonwealth. Hydroelectric power currently provides a small portion of electricity consumed in Massachusetts. According to the Energy Information Administration, it ranks behind natural-gas, nuclear, coal and other renewable energy sources.
The bill, titled “An Act Relative to energy sector compliance with the Global Warming Solutions Act,” would require the State’s electric distribution companies to solicit proposals for hydroelectric contracts spanning 15 to 25 years. … More
The third installment of our Paris climate change negotiations tracker is available. This may sound like a broken record, but there was not a lot of progress made in the Bonn talks earlier this month and it’s looking more and more as though it’s going to be difficult to reach a major substantive agreement in Paris.
… More
The connection between energy use and emissions of air pollutants, including GHGs, is uncontroversial. It is also widely, if not universally, accepted that there is a lot of low-hanging fruit in energy efficiency. I agree completely with both propositions.
Nonetheless, a recent article in Energy Research & Social Science (fee required for full article), reported in Tuesday’s Washington Post, provides a useful —… More
Recent events have me pondering this question.
Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate change. In the Washington case, in response to a complaint from eight teenagers, a trial court judge has ordered the Washington Department of Ecology to reconsider a petition filed by the teenagers requesting reductions in GHG emissions. … More
As the date for the Paris climate talks moves closer, we have our second installment of our climate negotiations tracker. This episode discusses the concept of “dynamism” – being able to adjust over time just how ambitious the mitigation goals will be; the mechanism for assessing the Nationally Determined Contributions, or NDCs; the role of non-state actors; and how to differentiate among developed and developing countries.… More
Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, the Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order requiring MassDEP to:
promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources that emit greenhouse gas emissions.
The Court did not oblige. … More
As we approach the start of the UN Framework Convention on Climate Change Conference of the Parties 21, slated to open in Paris on November 30, 2015, Foley Hoag begins a series of documents tracking the negotiations. The first installment discusses the range of Intended National Determined Contributions of four players in the talks: the United States, the EU, Russia,… More
The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response. 
It’s an important decision that could have lessons for EPA and the regulated community across a wide range of circumstances, including eventual challenges to EPA’s proposed GHG rule.
EPA said that the rule was necessary to allow demand response programs to succeed while maintaining grid reliability. … More
What are the politics of climate change? A new poll done by Stanford University and Resources for the Future suggests that the public may be more ready to regulate carbon 
than has previously been thought. When asked if “the federal government should or should not require companies to pay a tax to the government for every ton of greenhouse gases the companies put out,” 61% of respondents said yes. … More
Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations. It took less than a week before it became clear that EO 562 has real teeth. Yesterday, MassDEP sent out a one-paragraph notice delaying hearings on its proposed Clean Energy Standard, citing EO 562 as the reason:
MassDEP is postponing the hearings and comment period on the proposed Clean Energy Standard rule until it has completed the reviews required under the recent Executive Order 562.… More
I have long thought that the best argument for market-based approaches to climate change 
mitigation was the clunkiness of the alternative. However much time EPA has spent trying to make the GHG regulations efficient, no one can say that EPA’s proposal is elegant.
Although it is at best a dim glimmer of hope on the horizon, it was nonetheless comforting to see Jerry Taylor of the Libertarian Niskanen Center make “The Conservative Case for a Carbon Tax.” While I don’t agree with every aspect of his proposal,… More
In November, the North American Electric Reliability Corporation provided its “Initial Reliability Review” of EPA’s Clean Power Plan. NERC raised a number of concerns about the impact of the CPP on reliability.
Now the Advanced Energy Economy Institute – you can guess its perspective – has engaged the Brattle Group to provide an assessment of NERC’s IRR. Not surprisingly, … More
As I noted last year, there has been significant criticism of the Integrated Assessment Models used to calculate the social cost of carbon. An article published this week in Nature Climate Change (not free), attempts to respond to some of those criticisms. The result is a social cost of carbon that might be as high as $220/ton of CO2. The authors thus conclude that,… More
Last week, the Massachusetts Department of Environmental Protection proposed to implement a “Clean Energy Standard,” which would require that, by 2020, at least 45% of electricity sales come from sources which have “clean energy attributes.” The required percentage would increase to 49% by 2024, and MassDEP would then have to define percentages going forward at least 10 years in advance, with the caveat that the required percentage can never decrease.… More
As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants. EPA expects to issue the rules in the Summer of 2015. Only time will tell whether the agency makes the new date.
For those looking for a handy summary of actions to date and EPA’s schedule going forward, EPA has provided a short Fact Sheet which sets out the relevant dates for the various rules.… More
Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050. And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions. NRG’s statement indicated that it had already reduced emissions by 40% since 2005. By my math, that means that the 2030 and 2050 reductions would be 70% and 94%, respectively, below 2005 emissions.
If NRG can do it,… More
Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require. As with any MEPA (or NEPA) analysis, it has two parts: identification of impacts and discussion of mitigation measures.… More
If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of EPA’s GHG tailpipe standards. The details may matter only to those subject to the tailpipe rule, but they do demonstrate that EPA is not merely regulating GHG emissions for show;… More
On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June. My immediate reaction? My head hurts.
I don’t mean to trivialize the implementation issues that would likely arise if Congress enacted either a cap-and-trade system or a carbon tax, but they’ve got to pale in comparison to the Rube Goldberg-like system that’s going to be in place once EPA promulgates a final rule. … More
The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy 
“building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that, just relying on existing trends and compliance with renewable energy standards, renewable energy can supply 23% of electricity sales nationally by 2030, well above the 12% assumed by EPA.… More
Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature.
Nebraska’s claim was simple – the Clean Power Plan relies in part on technology demonstrated with funding pursuant to the Energy Policy Act of 2005. However, that statute precludes EPA from finding that technologies have been adequately demonstrated for the purposes of § 111 of the Clean Air Act based “solely” on use of the technologies by facilities funded under the Energy Policy Act.… More
The last frontier of citizen climate litigation has been state-based litigation alleging that states have a public trust obligation to mitigate climate change. As I have previously noted, I’m skeptical that these cases are viable. A decision last month by the Supreme Court of Alaska suggests that such skepticism is well-founded. 
In Kanuk v. Alaska, a number of minors living in Alaska brought suit,… More
Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.
In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal,… More
As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to highlight the economic costs resulting from gas leaks. Of course, methane is a much more powerful greenhouse gas than CO2, with a global warming potential of 21.… More
The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.
To EPA and the court below, the main issue – EPA’s authority – was not difficult.… More
Earlier this week, DOI Secretary Jewell joined with Governor Patrick to announce plans to auction more than 1,000 square miles on the Outer Continental Shelf offshore Massachusetts for wind energy development. The auction, which will be implemented as four separate leases, pretty much will follow the form of earlier lease auctions:
• Bidders will be prequalified to participate in the auction
• The auction will include multiple factors,… More
Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very) slightly broader look at potential legal challenges.
First, I still think that the most obvious potential plaintiffs, owners of coal-fired power plants, might indeed have standing issues in challenging a rule which maximizes the options for attaining reductions in GHG emissions.… More
As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.
Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the evidence?
• The share of allowances held by investors as opposed to compliance entities increased from 6% to 24% over the course of 2013.
• The volume of allowance futures trading rose from 2 million in 2012 to 76 million in 2013.… More
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.… More
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.… More
Last week’s auction of CO2 allowances by the Regional Greenhouse Gas Initiative (RGGI) was the 23rd in the program’s history, but the first auction under the new RGGI rules and reduced cap. The new rules undoubtedly explain why the auction yielded the highest sales price in RGGI history — $4 per allowance. Even more notable, it was the first auction where the clearing price was high enough to trigger the cost containment reserve (CCR). … More
As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at projects that have received federal funding or tax credits under the Energy Policy Act of 2005. Apparently, EPA is sufficiently concerned that they have prepared a Notice of Data Availability to be published in the Federal Register. … More
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. … More
Last year, Governor Patrick announced a goal of 1.6GW of solar electricity in Massachusetts by 2020; a goal that requires more than 1.2GW of new solar in the next six years. The Massachusetts Department of Energy Resources has now issued draft regulations for its SREC II program. The regulations are too complicated to summarize in a blog post, but you can read the details in our client alert.… More
When EPA’s NSPS Rule for GHGs was published in the Federal Register last week, I noted that the rule might be on shaky ground, because an EPA Science Advisory Board work group had questioned the basis for EPA’s decision that carbon capture and storage is feasible technology. Now it turns out that EPA has provided the work group with some additional information and the work group issued a memorandum last week stating that further review by the SAB is not required. … More
EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday. At least fundamentally, it seems unchanged from the proposal released last September. It is still based on the conclusion that carbon capture and storage is feasible and represents BSER – the best system of emission reduction – for fossil fuel-fired electric steam generating units.… More
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,… More
Those of us with an interest in renewable energy have long wondered if offshore wind would ever reach its promise. The knots into which Cape Wind has been tied provide an object lesson – and an abject lesson – in how not to incentivize new technologies. As of now, offshore wind in the United States remains all promise, and no delivery.
Is the future finally around the corner? … More
I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious. With few exceptions, courts have affirmed EPA when the regulations were supported by EPA’s science advisors, and struck down the regulations when not supported by those advisors.
Now comes word that a work group of EPA’s Science Advisory Board has recommended that the SAB review the science supporting EPA’s proposed New Source Performance Standards for GHG emissions from electric generating units. … More
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.… More
For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs that the use of carbon imposes on society: the “social cost of carbon”, or SCC. Recently, attention has focused on efforts to develop “Integrated Assessment Models.” The point of the IAMs is to integrate the scientific analysis of the changing climate with the economic costs that would result from varying degrees of climate change.… More
Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.” Instead, we were told to focus on “growing the clean energy economy.” The push to frame the climate debate in economic terms continues. This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines. … More
On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources. EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be. … More
On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations. These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review.
As Seth previously discussed, the major change is a new cap that reduces the baseline budget of allowances for 2014 by 45%,… More
President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act. At a certain level, there is not much new here. The mere existence of the Plan and the commitment to address climate issues is presumably the point.
The Plan does not provide many specifics. … More
It has not been a good run for plaintiffs in private climate change litigation. As we noted last week, the 5th Circuit Court of Appeals affirmed dismissal in Comer v. Murphy Oil. Now, on Monday, the Supreme Court denied certiorari in Native Village of Kivalina v. Exxon Mobil. Kivalina ended more with a whimper than a bang,… More
Readers of this blog will recall the bizarre history of Comer v. Murphy Oil. In 2005, Plaintiffs brought tort claims against major GHG emitters, claiming that those emissions, by causing global warming, led to plaintiffs’ damages from Hurricane Katrina. The District Court dismissed, ruling both that plaintiffs had no standing and that the claims were really non-justiciable political questions. The Fifth Circuit Court of Appeals reversed and remanded. … More
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:
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.… More
I have previously blogged about how strange our politics has become, when cap-and-trade programs, previously touted by conservatives and viewed skeptically by environmentalists as a “license to pollute,” somehow become for conservatives the poster child of big government programs. It is nice when economists as respected as Dick Schmalensee and my friend Rob Stavins make the same point. I’m not sure I can put it much more succinctly than this:
It is truly ironic that conservatives chose to demonise their own market-based creation.… More
The California Air Resources Board just released the results of its second auction of GHG allowances. While the auction for vintage 2013 allowances was still healthy, with all allowances sold at $13.62/allowance, the future auction, for vintage 2016 allowances, did not fare so well. Fewer than half the allowances sold, and the clearing price was CARB’s reserve price of $10.71/allowance.
Why the disparity? It’s significantly above any reasonable discount rate. … More
ISO New England has just released its Electric Generator Air Emissions Report for 2011. The bottom line?
As our observant readers will have inferred,… More
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,… More
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 PPAs on behalf of the Massachusetts Department of Energy Resources,… More
At California’s inaugural auction of greenhouse gas allowances last week, bidders bought all 23.1 million allowances for 2013 emissions sold at $10.09 per ton, a few significant cents above the floor price of $10. The price and relatively high demand for the allowances — with the state receiving three times as many bids as allowances available for sale — bodes well for the fledgling market. There is clearly more interest in the California market than for RGGI: the $10.09 per ton price is over five times the price garnered at the latest RGGI auction ($1.93),… More
There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.
First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. … More
As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. … More
Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change. Sunstein’s argument is that
Economists of diverse viewpoints concur that if the international community entered into a sensible agreement to reduce greenhouse gas emissions, the economic benefits would greatly outweigh the costs.
I don’t disagree with anything he says;… More
In 2009, at the international climate talks in Copenhagen, Denmark, President Obama pledged that the US would reduce its greenhouse gas emissions 17% below 2005 levels by 2020. Since then, national efforts toward comprehensive climate legislation, or even making concrete strides to intentionally reduce emissions on a national scale have been, let’s say… lackluster. But even so, a recent report by Resources for the Future predicts that the US will hit 16.3% reductions over a 2005 baseline by 2020. … More
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”… More
On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.
As most readers will know, last year,… More
For those of you following the public trust climate litigation in New Mexico, Judge Sarah Singleton has now issued a written decision denying the state’s motion to dismiss the case. There is no discussion of the issues, but it did seem worth noting that Judge Singleton also denied the state’s request for immediate interlocutory appeal (though providing that the request could be renewed after summary judgment),… More
Last Friday, Lisa Jackson signed “Step 3” of the Tailoring Rule. In what was probably not a surprise to many, EPA determined
that state permitting authorities have not had sufficient time to develop necessary permitting infrastructure and to increase their GHG permitting expertise and capacity. By the same token, EPA and the state permitting authorities have not had the opportunity to develop and implement streamlining approaches.… More
Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C. Circuit Court of Appeals rejected all challenges to EPA’s GHG rules. The decision is a reminder that important cases, or those with big stakes, are not necessarily difficult cases. Anyone reviewing the decision will quickly see that, to the court, this was not a hard case. Indeed, the tone of the opinion has the feel of a teacher lecturing a student where the teacher has a sense that the student is being willfully obtuse.… More
Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in a home rule state that would have a fighting chance to win any national NIMBY championship competition. … More
One of my favorite rants concerns the pessimism of most environmentalists. It’s probably a pointless rant, both because one cannot control whether one is an optimist or a pessimist and because very few people, and almost none of the environmentalists I know, will ever admit to being a pessimist. Nonetheless, it’s a real issue, because the point of the Cassandra myth wasn’t just that she could predict the future,… More
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,… More
Last week, the Virginia Supreme Court ruled (for the second time) that a CGL policy issued to AES Corporation did not require Steadfast Insurance to provide a defense to AES for claims brought again AES in Kivalina v. Exxon Mobil. The decision, in AES Corporation v. Steadfast Insurance, held simply that, based on the “eight corners” of the complaint and the insurance policy,… More
Yesterday, Greenwire reported about speculation regarding what impact EPA’s proposed New Source Performance Standards for greenhouses gases would have on potential regulation of existing sources. As Greenwire noted, while EPA sought to downplay the impact of the NSPS on regulation of existing sources, both environmentalists and industry representatives think that regulation of existing sources is pretty much inevitable.
My favorite bit from the story is that OMB apparently deleted the following language from EPA’s proposal:
At a future date,… More
On Tuesday, EPA announced release of its proposed New Source Performance Standards for carbon pollution from new power plants. I’m feeling like a broken record here. Everyone’s acting on rational motives (if not rationally), but the result remains, to put it mildly, suboptimal. On the paramount environmental issue of the day, we’re going about it all wrong, when we know that there is a better way.
I cannot really blame EPA or the environmentalists. … More
On Friday, EPA released “Step 3” of the GHG Tailoring Rule. The big news is no news at all. EPA left the GHG permitting thresholds unchanged, at 100,000 tons per year of carbon dioxide equivalent for new facilities and increases of 75,000 tpy of CO2e for existing facilities. In a phrase repeated in EPA’s fact sheet, keeping the thresholds unchanged is part of EPA’s “common sense … approach” to GHG permitting.… More
After a relatively quiet period, there were a number of items of interest on the air/climate front this week. First, AEP announced that upcoming pollution controls would result in shutting down 6,000 megawatts of coal-fired capacity, or 25% of its coal fleet. AEP also announced that it would spend $6 billion to $8 billion in bringing the rest of its fleet into compliance.
On the flip side of this issue,… More
Justice Brandeis famously suggested that states may “serve as a laboratory” for the rest of the country. If this is so, I think it is fair to say that U.S. EPA has not accepted the results of the biomass experiment conducted in Massachusetts. Last year, following receipt of a study regarding the GHG emission implications of various types of biomass fuels, Massachusetts decided to severely restrict the circumstances in which biomass would be considered a renewable fuel.… More
With everyone in agreement that cap-and-trade legislation is dead in Congress for the near term, attention is now turning to whether Congress might be able to pass some kind of renewable or clean energy standard. In fact, even Thomas Donahue, President of the U.S. Chamber of Commerce, sworn foe of cap-and-trade legislation, is saying that the Chamber could support some kind of climate change legislation – presumably a CES including nuclear power –… More
Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to regulate GHGs, the PSD/NSR program or the NSPS program.… More
EPA has finally released it long-awaited PSD and Title V Permitting Guidance for Greenhouse Gases, also known as the GHG BACT Guidance. E&E News quoted Gina McCarthy as saying that GHG permitting would be “business as usual” and that the transition to issuing PSD permits for GHGs would be relatively smooth.
Not.
It’s certainly true that the GHG BACT Guidance says nothing particularly new about how permitting agencies should perform BACT reviews. … More
Last March, I noted that Gina McCarthy’s belief that, in the near term, the biggest impact on GHG emissions would come from EPA’s traditional regulatory programs, rather than through GHG regulation. A report recently released by Credit Suisse indicates that she might be right. Looking at EPA’s upcoming promulgation of the Clean Air Transport Rule and the mercury MACT rule, Credit Suisse predicts that between 50 and 69 gigawatts of old coal plants will be retired between 2013 and 2017 as a result of implementation of the two rules. Credit Suisse also predicts that approximately 100 gigawatts of capacity will require significant additional investment to comply with the rules.… More
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,… More
On a day when ClimateWire reported that thousands of walruses are stuck on land because their usual summer home – sea ice – has disappeared, I’m beginning to wonder whether EPA’s stationary source GHG rules are similarly at risk. It may not be difficult for EPA to brush off a fairly over the top letter from Texas which basically asked EPA “What part of ‘hell no” don’t you understand?”
However,… More
I have previously expressed my distaste for public nuisance litigation to require reductions in GHG emissions. It cannot be more than a tactic in a war to the plaintiffs, because the chaos resulting from regulation of a global problem through a series of individual law suits has to be obvious to everyone. Now, apparently, that chaos is also obvious to the Obama administration, because it has filed a brief with the Supreme Court,… More
When we blogged about the Mandatory Greenhouse Gas Reporting Program regulations last fall, we noted that the EPA had excluded from the final regulations emission source categories such as wastewater treatment plants and underground coal mines that were initially included in the draft rules. No longer. Yesterday, EPA finalized regulations requiring an estimated 680 facilities in the four sectors of underground coal mines, industrial wastewater treatment systems,… More
Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants.
Second,… More
Last Friday, the Court of Appeals for the 5th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs’ appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court dismissed the case. A panel of the 5th Circuit reversed.… More
First Kerry-Lieberman, then the Tailoring Rule – a busy week for climate change. Senator Kerry certainly did not miss the coincidence. He called the release of the Tailoring Rule the “last call” for federal legislation. I’ve noted before the leverage that EPA regulation would provide, but this is the most explicit I’ve seen one of the sponsors on the issue.
As to the substance, there are not really any surprises at this point. EPA is certainly working to soften the blow of GHG regulation under the PSD program. Here are the basics (summarized here):
January 2,… More
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”… More
EPA has finally issued its formal reconsideration of the Johnson Memo. As EPA had telegraphed, it confirms that a pollutant is only subject to PSD permitting requirements when that pollutant is subject to “a final nationwide rule [that] requires actual control of emissions of the pollutant.”
As EPA had also already indicated, the reconsideration states that PSD permitting requirements are triggered, not when a rule is signed or even on the effective date of the rule,… More
Yesterday, EPA Administrator Jackson issued a letter to Senator Jay Rockefeller responding to certain questions regarding EPA regulation of GHGs under existing Clean Air Act authority, including promulgation of the so-called “Tailoring Rule”, describing how stationary source regulation under the existing PSD program would be phased-in once GHGs are subject to regulation. Here are the highlights:
EPA still expects to promulgate the Tailoring Rule by April 2010.… More
Given the stories this week of continuing efforts in Congress to preclude EPA from regulating GHGs under existing Clean Air Act authority, I couldn’t resist this headline.
The first story is that three House members, including two Democrats (House Agriculture Committee Chair Collin Peterson and Missouri Rep. Ike Skelton) have followed the lead of the Senate – where there are also Democratic sponsors –… More
Last month, I noted with some trepidation that EPA Administrator Jackson had stated that "I don’t believe this is an either-or proposition," referring to the possibility that there could be both climate legislation and EPA regulation of GHGs under existing EPA authority. Today, it’s looking more like a neither-nor proposition.
First, with respect to the prospects for climate change legislation, Senator Gregg was quoted in ClimateWire as saying that “the chance of a global warming law passing this year was ‘zero to negative 10 percent.’" Whether Senator Gregg has the odds pegged exactly right,… More
Last April, I noted that the one certainty associated with EPA regulation of greenhouse gases under existing Clean Air Act authority was that there would be unintended consequences. If anyone doubted that this would be so, they might want to read some of the comments submitted to EPA in connection with EPA’s proposed Tailoring Rule, which would exempt facilities emitting less than 25,000 tons per year of CO2e from the PSD provisions of the Clean Air Act after CO2e becomes a regulated pollutant under the CAA.… More
According to a report released last week by Environment America, power plants were responsible for 42% of the CO2 emitted in the United States in 2007, substantially more than any other sector, including transportation. What’s the explanation? Largely, it’s the age of the United States power plants. The report, based on EPA data, states that 73% of power plant CO2 emissions came from plants operating since prior to 1980.
What’s the solution to this problem,… More
