Climate Change Attorney Blog
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On December 3, 2015, a bill was introduced in the U.S. House of Representatives proposing to relate the ability of the EPA to regulate carbon dioxide emissions, from fossil fuel-fired electric generating plants, to certification of specific actions by other countries to reduce carbon dioxide emissions. H.R. 4169 links new regulations of CO2 emissions from those power plants to implementation of regulations by other countries that would reduce worldwide CO2 emissions (not including US. emissions) by eighty (80%) percent.

Not only does the bill prevent the EPA from trying to unilaterally take action to reduce CO2 emissions, the bill appears to effectively preempt U.S. participation in any international agreement on reduction of CO2, unless it meets the standards set by Congress.  One question is whether the bill would violate Article II, section 2 of the United States Constitution which provides the President “…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”.  If the President reaches an international agreement on CO2 emissions that has a different standard for reduction, does Congress have the authority to block implementation of such an agreement through an Act such as H.R. 4169?

The full text of the bill reads as follows:

“To amend the Clean Air Act to prohibit any regulation under such Act concerning the emissions of carbon dioxide from a fossil fuel-fired electric generating unit from taking effect until the Administrator of the Environmental Protection Agency makes certain certifications, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the “Fighting Against Imbalanced Regulatory Burdens Act of 2015”.


The Clean Air Act (42 U.S.C. 7401 et seq.) is amended by inserting after section 329 the following:


(a) Prohibition On Regulations Concerning Emissions Of Carbon Dioxide From Fossil Fuel-Fired Electric Generating Units Taking Effect.—

(1) PROHIBITION.—A regulation under this Act concerning emissions of carbon dioxide from a fossil fuel-fired electric generating unit to address climate change may not take effect until the Administrator certifies that a sufficient number of countries have put into effect regulations concerning emissions of carbon dioxide which are at least as stringent as the regulation under this Act.

(2) COUNTRIES.—For the purposes of paragraph (1), the term ‘sufficient number’ means a sufficient number of countries so that, in the aggregate, such countries account for not less than 80 percent of the global carbon dioxide emissions, excluding such emissions in the United States, in the calendar year immediately preceding the year in which the regulation under this Act would be enforced.

(3) STRINGENCY CONSIDERATIONS.—For the purposes of paragraph (1), a country’s regulation concerning carbon dioxide emissions may only be considered to be as stringent as the regulation under this Act if such country’s regulation limits carbon dioxide emissions to a numeric standard that is equal to or less than such a standard under the regulation under this Act in a timeframe that is equal to or less than the timeframe under the regulation under this Act.

(b) Rule Of Construction.—Nothing in this section shall be construed as providing the Administrator with any authority to promulgate any regulation concerning, take action relating to, or take into consideration the emissions of carbon dioxide.”

Steven Silverberg

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In a report released last week by the United Nations it was found that 90% of major disasters over the last twenty years were weather related. In the summary of  the report released on November 25, 2015 it was stated  those “major disasters have been caused by 6,457 recorded floods, storms, heatwaves, droughts and other weather-related events.”

The head of UN Office for Disaster Risk Reduction (UNISDR) noted that there are a number of drivers that increase the risks of these weather events, including greenhouse gas emissions.

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Two recent studies outline the potentially devastating economic impacts of  unchecked climate change. In a recent study released by Citigroup, the economic effects of action on climate change versus inaction on climate change were compared, with the conclusion that inaction brought much greater potential economic impacts. This week the Journal Nature issued a report concluding inaction on climate change could result in a 23% reduction in global income by 2100.

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The California Legislature is currently considering two bills that would have a significant impact on the consumption of energy in that State. Aimed at reducing emissions the two proposals, if enacted, would be unprecedented.

The first bill, the Clean Energy and Pollution Reduction Act of 2015, proposes to reduce the use of oil by 50% and increase the use of sources of renewable energy by 50% within the next 15 years.

The Second bill, the California Global Warming Solutions Act, seeks to amend a 2006 statute by advancing the date for certain reductions in emissions. For example, the new bill proposes an interim limit on greenhouse gases (GHG) of 40% below 1990 levels by 2030 with a total reduction of 80% below 1990 GHG levels by 2050.

-Steven Silverberg

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Recent legislation has directed the New York Department of Environmental Conservation (“DEC”) to prepare regulations addressing projections of sea level rise, along with adaptation strategies. As a part of that process the DEC held a series of meetings last week in order address issues outlined by the DEC in its published Summary for Stakeholders.

As noted by the DEC:

“It is important to compare outlays for adaptation measures with the costs of doing nothing, and to take into account the importance of climate change losses to society.

ClimAID 2011 initiated these comparisons with a statewide analysis of limited data on eight economic sectors. This study concluded that unless resilience measures are put in place, by mid-century the total costs of climate change for key economic sectors in New York State each year may approach $10 billion (in 2010 dollars).

The study projected the largest likely direct impacts and costs of climate change in coastal areas, chiefly impacting transportation, energy and other infrastructure, and natural resources. However, it concluded, all economic sectors and all parts of the state will feel impacts like lower agricultural crop yields and dairy production, or declining winter recreation tourism.”

The the Community Risk and Resiliency Act (CRRA) requires DEC and other state agencies to adopt official State sea-level rise projections by January 1, 2016. Those regulations will serve as the basis for State adaptation decisions and will be available for use by all decision makers.

Steven Silverberg

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A bill has been submitted in Congress that if adopted will completely alter Federal energy policies and restrict or eliminate the ability of federal agencies to regulate activities that have potentially significant environmental impacts.. The so called “American Energy Renaissance Act of 2015” addresses everything from fracking, the Keystone XL Pipeline, drilling in the outer continental shelf, tribal lands and drilling for oil in Alaska to renewable fuel, the budget deficit and regulation of greenhouse gases.

The proposed act also restricts judicial review of actions pursuant to the bill, creates short statutes of limitation to seek judicial review, short periods for action by the applicable agencies to process permit applications and prohibits recovery of legal fees for challenges to actions.

While there are many aspects of the bill that would impact Climate Change policies, the sections below repealing renewable fuel standards,and preventing the EPA from adopting regulations that regulate greenhouse gases seem to be the provisions that most directly reject the concept of Climate Change. Moreover the bill proposes the “term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride.”

These are some of the more troubling provisions from a climate change perspective.

“Subtitle B-Repeal Of Renewable Fuel Standard
Congress finds that the mandates under the renewable fuel standard contained in section 211(o) of the Clean Air Act (42 U.S.C. 7545(o))-

(1) impose significant costs on American citizens and the American economy, without offering any benefit; and
(2) should be repealed.

(a) In General.-Section 211(o) of the Clean Air Act (42 U.S.C. 7545(o)) is amended-

(1) in paragraph (2)-

(A) in subparagraph (A)-

(i) by striking clause (ii); and
(ii) by redesignating clauses (iii) and (iv) as clauses (ii) and (iii), respectively; and
(B) in subparagraph (B), by striking clauses (ii) through (v) and inserting the following:

“(ii) CALENDAR YEARS 2014 THROUGH 2019.-Notwithstanding clause (i), for purposes of subparagraph (A), the applicable volumes of renewable fuel for each of calendar years 2014 through 2019 shall be determined as follows:

“(I) For calendar years 2014 and 2015, in accordance with the table entitled ‘I–2-Proposed 2014 Volume Requirements’ of the proposed rule published at pages 71732 through 71784 of volume 78 of the Federal Register (November 29, 2013).

“(II) For calendar year 2016, the applicable volumes established under subclause (I), reduced by 20 percent.

“(III) For calendar year 2017, the applicable volumes established under subclause (I), reduced by 40 percent.

“(IV) For calendar year 2018, the applicable volumes established under subclause (I), reduced by 60 percent.

“(V) For calendar year 2019, the applicable volumes established under subclause (I), reduced by 80 percent.”;

(2) in paragraph (3)-

(A) by striking “2021” and inserting “2018” each place it appears; and
(B) in subparagraph (B)(i), by inserting “, subject to the condition that the renewable fuel obligation determined for a calendar year is not more than the applicable volumes established under paragraph (2)(B)(ii)” before the period; and
(3) by adding at the end the following:

“(13) SUNSET.-The program established under this subsection shall terminate on December 31, 2019.”.

(b) Regulations.-Effective beginning on January 1, 2020, the regulations contained in subparts K and M of part 80 of title 40, Code of Federal Regulations (as in effect on that date of enactment), shall have no force or effect.

Congress finds that-

(1) the Environmental Protection Agency has exceeded its statutory authority by promulgating regulations that were not contemplated by Congress in the authorizing language of the statutes enacted by Congress;

(2) no Federal agency has the authority to regulate greenhouse gases under current law; and
(3) no attempt to regulate greenhouse gases should be undertaken without further Congressional action.

(a) Repeal Of Federal Climate Change Regulation.-

(1) GREENHOUSE GAS REGULATION UNDER CLEAN AIR ACT.-Section 302(g) of the Clean Air Act (42 U.S.C. 7602(g)) is amended-

(A) by striking “(g) The term” and inserting the following:

“(g) Air Pollutant.-

“(1) IN GENERAL.-The term”; and
(B) by adding at the end the following:

“(2) EXCLUSION.-The term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride.”.

(2) NO REGULATION OF CLIMATE CHANGE.-Notwithstanding any other provision of law, nothing in any of the following Acts or any other law authorizes or requires the regulation of climate change or global warming:

(A) The Clean Air Act (42 U.S.C. 7401 et seq.).

(B) The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

(C) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(D) The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(E) The Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(b) Effect On Proposed Rules Of The EPA.-In accordance with this section, the following proposed or contemplated rules (or any similar or successor rules) of the Environmental Protection Agency shall be void and have no force or effect:

(1) The proposed rule entitled “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” (published at 79 Fed. Reg. 1430 (January 8, 2014)).

(2) The proposed rule entitled “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (published at 79 Fed. Reg. 34829 (June 18, 2014)).

(3) Any other contemplated or proposed rules proposed to be issued pursuant to the purported authority described in subsection (a)(2).

(a) In General.-Neither the Secretary of the Army, acting through the Chief of Engineers, nor the Administrator of the Environmental Protection Agency shall-

(1) finalize the proposed rule entitled “Definition of Waters of the United States Under the Clean Water Act” (79 Fed. Reg. 22188 (April 21, 2014)); or
(2) use the proposed rule described in paragraph (1), or any substantially similar proposed rule or guidance, as the basis for any rulemaking or any decision regarding the scope or enforcement of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

(b) Rules.-The use of the proposed rule described in subsection (a)(1), or any substantially similar proposed rule or guidance, as the basis for any rulemaking or any decision regarding the scope or enforcement of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) shall be grounds for vacation of the final rule, decision, or enforcement action.

(a) In General.-Before proposing or finalizing any regulation, rule, or policy, the Administrator of the Environmental Protection Agency shall provide an analysis of the regulation, rule, or policy and describe the direct and indirect net and gross impact of the regulation, rule, or policy on employment in the United States.

(b) Limitation.-No regulation, rule, or policy described in subsection (a) shall take effect if the regulation, rule, or policy has a negative impact on employment.”

-Steven Silverberg

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FEMA has issued new guidelines, effective as of March 2016, for evaluating State plans to reduce or eliminate risks from natural hazards. The new Guide establishes the new standards, now including climate change, that must be met by states in planning for reduction of the risks from natural disasters. Significantly, funding to the states can be impacted by the failure to meet these guidelines.

Referring to the Intergovernmental Panel on Climate Change Fourth Assessment Report, the Guide notes that “the challenge posed by climate change such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future”.

The Guide also requires that states assess their current capabilities to address risk and indicate how those capabilities may be strengthened. The plans must establish hazard mitigation goals and how the states plan to meet those goals. These should include everything from land use regulations to utilities, transportation and emergency planning.

The Guide notes that “critical” to planning is the need to incorporate “local and tribal” mitigation plan strategies. In this regard the Guide states that “all mitigation is local”. Therefore states should provide training, technical assistance and “where available funding” to assist localities to be aware of state priorities, as well as hazard data and planning resources.

The state plans must not only look at current conditions but are required to assess development patterns. In this regard the guidelines indicate that mitigation priorities should not only include the next five years but should also look “outward to the long term ” for the next ten or twenty years.

It should be interesting to see the reaction to the new Guide.

-Steven Silverberg

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On January 30,2015 the President issued an Executive Order fixing new standards for construction within a floodplain. The new Flood Risk Management Standard amends Executive Order 11988 of May 24, 1977.

The new standards impact projects where agencies ” guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood”.

The old order established floodplains as areas with at a minimum of a one percent or greater annual chance of flooding. The new rule is broader and more stringent stating:

“The floodplain shall be established using one of the following approaches:

“(1) Unless an exception is made under paragraph (2), the floodplain shall be:

“(i) the elevation and flood hazard area that result from using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;

“(ii) the elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;

“(iii) the area subject to flooding by the 0.2 percent annual chance flood; or
“(iv) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.”

Paragraph 2 exceptions include issues of national security or emergencies.

The Executive Order goes on to direct:

“To the extent permitted by law, each agency shall, in consultation with the Water Resources Council, Federal Interagency Floodplain Management Task Force, Federal Emergency Management Agency, and Council on Environmental Quality, issue or amend existing regulations and procedures to comply with this order, and update those regulations and procedures as warranted.”

-Steven Silverberg

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The most recent UN IPCC Report on Climate Change has been released. The full Report, issued on November 1, 2014, has a number of dire predictions, if no action is taken. These are highlighted in an additional document labeled “Headline Statements” which include:

“Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise….

Many aspects of climate change and associated impacts will continue for centuries, even if anthropogenic emissions of greenhouse gases are stopped. The risks of abrupt or irreversible changes increase as the magnitude of the warming increases….

Without additional mitigation efforts beyond those in place today, and even with adaptation, warming by the end of the 21st century will lead to high to very high risk of severe, widespread, and irreversible impacts globally (high confidence). Mitigation involves some level of co-benefits and of risks due to adverse side-effects, but these risks do not involve the same possibility of severe, widespread, and irreversible impacts as risks from climate change, increasing the benefits from near-term mitigation efforts.

Adaptation can reduce the risks of climate change impacts, but there are limits to its effectiveness, especially with greater magnitudes and rates of climate change. Taking a longer-term perspective, in the context of sustainable development, increases the likelihood that more immediate adaptation actions will also enhance future options and preparedness.

There are multiple mitigation pathways that are likely to limit warming to below 2°C relative to pre-industrial levels. These pathways would require substantial emissions reductions over the next few decades and near zero emissions of carbon dioxide and other long-lived greenhouse gases by the end of the century. Implementing such reductions poses substantial technological, economic, social, and institutional challenges, which increase with delays in additional mitigation and if key technologies are not available. Limiting warming to lower or higher levels involves similar challenges, but on different timescales.”

-Steven Silverberg

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This past week has been World Water Week. NASA has posted some interesting material to mark World Water Week, including an an animation showing our dependence on the oceans and the potential impacts of sea level rise.

The site notes there has been a sea level rise of 5 centimeters just since 1993 and illustrates the effect of a 2 meter rise (the model many are using for the year 2100) on various coastal areas.

-Steven Silverberg