Climate Change Attorney Blog

The EPA today issued its final rule on stationary source emissions of Greenhouse Gases (GHGs). In a press release the EPA noted:

"EPA’s phased-in approach will start in January 2011, when Clean Air Act permitting requirements for GHGs will kick in for large facilities that are already obtaining Clean Air Act permits for other pollutants. Those facilities will be required to include GHGs in their permit if they increase these emissions by at least 75,000 tons per year (tpy).

In July 2011, Clean Air Act permitting requirements will expand to cover all new facilities with GHG emissions of at least 100,000 tpy and modifications at existing facilities that would increase GHG emissions by at least 75,000 tpy. These permits must demonstrate the use of best available control technologies to minimize GHG emission increases when facilities are constructed or significantly modified.

Under the new emissions thresholds for GHGs that begin in July 2011, EPA estimates approximately 900 additional permitting actions covering new sources and modifications to existing sources would be subject to review each year. In addition, 550 sources will need to obtain operating permits for the first time because of their GHG emissions."

The final rule can be found at the EPA Website.

-Steven Silverberg

The Council on Environmental Quality (CEQ) issued draft guidance on the consideration of GHG's in the NEPA process. The memorandum issued by CEQ states in part:

"NEPA demands informed, realistic governmental decision making. CEQ proposes to advise Federal agencies to consider, in scoping their NEPA analyses, whether analysis of the direct and indirect GHG emissions from their proposed actions may provide meaningful information to decision makers and the public. Specifically, if a proposed action would be reasonably anticipated to cause direct emissions of 25,000 metric tons or more of CO2-equivalent GHG emissions on an annual basis, agencies should consider this an indicator that a quantitative and qualitative assessment may be meaningful to decision makers and the public. For long-term actions that have annual direct emissions of less than 25,000 metric tons of CO2-equivalent, CEQ encourages Federal agencies to consider whether the action’s long-term emissions should receive similar analysis. CEQ does not propose this as an indicator of a threshold of significant effects, but rather as an indicator of a minimum level of GHG emissions that may warrant some description in the appropriate NEPA analysis for agency actions involving direct emissions of GHGs."

Comment on the Draft Guidance will be accepted until May 24, 2010 and should be submitted
electronically to GCC.guidance@ceq.eop.gov, or in writing to The Council on Environmental Quality, Attn: Ted Boling, 722 Jackson Place, NW., Washington, DC 20503.

-Steven Silverberg

The Securities and Exchange Commission issued interpretive guidance on the application of existing regulations to the need to disclose the impacts of climate change on business. In a press release issued on January 27th the SEC provided examples of instances in which climate change or regulations related to climate change may trigger disclosure requirements, noting the guidance highlighted:

" *Impact of Legislation and Regulation: When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material. In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.

*Impact of International Accords: A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.

*Indirect Consequences of Regulation or Business Trends: Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies. For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.

*Physical Impacts of Climate Change: Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business."

-Steven Silverberg

The United States Environmental Protection Agency (EPA) issued endangerment findings today formally declaring greenhouse gases (GHGs) to be a threat to public health and the environment. In a press release issued with the findings the EPA stated:

"EPA’s endangerment finding covers emissions of six key greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – that have been the subject of scrutiny and intense analysis for decades by scientists in the United States and around the world.

Scientific consensus shows that as a result of human activities, GHG concentrations in the atmosphere are at record high levels and data shows that the Earth has been warming over the past 100 years, with the steepest increase in warming in recent decades. The evidence of human-induced climate change goes beyond observed increases in average surface temperatures; it includes melting ice in the Arctic, melting glaciers around the world, increasing ocean temperatures, rising sea levels, acidification of the oceans due to excess carbon dioxide, changing precipitation patterns, and changing patterns of ecosystems and wildlife."

Calling for a "coordinated and strategic response" to climate change resulting from global warming, on Wednesday, the U.S. Fish and Wildlife Service issued a proposed plan to address the impacts of climate change on fish and wildlife. In a statement released by the Director of the Service, he stated: "the plan lays the foundation for the Service’s role in national efforts to conserve fish and wildlife in a rapidly changing climate but the plan is not yet complete. It needs constructive input from our most powerful partners—the American public. The public’s involvement is critical, because climate change is bigger than any one agency, department, or government.”

The proposed plan includes:

"* Targeting conservation by working with partners to develop science-based methods to identify the most vulnerable species.
* Prioritizing existing challenges that will be made more difficult as a result of changing climate, including water scarcity and habitat fragmentation.
* Leading efforts to develop a National Fish and Wildlife Adaptation Strategy, as outlined in pending climate change legislation in the U.S. Congress, to serve as the conservation community’s shared blueprint to guide wildlife adaptation partnerships during the next 50 years.
* Creating a National Biological Inventory and Monitoring Partnership that strategically deploys the conservation community’s monitoring resources. Working with DOI’s Regional Climate Change Response Centers, the Partnership would generate scientific data needed to understand climate change effects on the distribution and abundance of fish, wildlife, plants and their habitats; model predicted population and habitat change; and help us determine if we are achieving our goals.
* Building Landscape Conservation Cooperatives that develop regional and field technical capacity by working with partners to provide cutting edge science and information. These cooperatives, guided by DOI’s newly created Climate Response Council, will be the primary vehicle through which the Service and partners acquire and apply the best climate change science to inform fish and wildlife management decisions and actions."

Comments by the public can be submitted through November 23, 2009 at the the Service's climate change site.

Today the EPA reversed its prior determination on the request by California for a waiver permitting more stringent emission standards for model 2009 and later year motor vehicles. In reversing the prior determination and issuing the waiver the EPA Administrator, Lisa P. Jackson found tha the waiver was appropriate under the Clean Air Act criteria "I am withdrawing EPA’s March 6, 2008 Denial and have determined that the most appropriate action in response to California’s greenhouse gas waiver request is to grant that request. I have determined that the waiver opponents have not met their burden of proof in order for me to deny the waiver under any of the three criteria in section 209(b)(1)."

The findings go on to state in part: "The text of section 209(b) and the legislative history, when viewed together, lead me to reject the interpretation adopted in the March 6, 2008 Denial, and to apply the traditional interpretation to the evaluation of California's greenhouse gas standards for motor vehicles. If California needs a separate motor vehicle program to address the kinds of compelling and extraordinary conditions discussed in the traditional interpretation, then Congress intended that California could have such a program. Congress also intentionally provided California the broadest possible discretion in adopting the kind of standards in its motor vehicle program that California determines are appropriate to address air pollution problems and protect the health and welfare of its citizens. The better interpretation of the text and legislative history of this provision is that Congress did not use this criterion to limit California’s discretion to a certain category of air pollution problems, to the exclusion of others....Section 209(a) creates the explicit preemption of state emission standards, and at the same time leaves EPA to set federal emission standards, under the authority of section 202(a). Within the context of section 209, and the preemption of 209(a), section 209(b)’s waiver provision allows California the ability to set its own emission standards....The difference between emission standards and fuel economy standards is highlighted by comparing the two sets of standards at issue here. California’s greenhouse gas emission standards establish allowable grams per mile (“gpm”) levels for greenhouse gas emissions, including tailpipe emissions of carbon dioxide (CO2), nitrous oxide (N2O), and methane (CH4) as well as emissions of CO2 and hydrofluorocarbons (HFCs) related to operation of the air conditioning system. By regulating emissions of four different greenhouse gas pollutants, the standards do more than reduce tailpipe CO2 emissions resulting from fuel combustion. They do not directly equate to miles per gallon fuel economy reductions. Fuel economy standards, on the other hand, directly control miles per gallon (“mpg”) fuel economy levels. CO2 reductions will occur, but they are an expected indirect effect of improved fuel economy standards because the same technology that improves fuel economy effectively reduces CO2 emissions."

The waiver goes on to state that in "evaluating its greenhouse gas standards, California’s protectiveness determination went beyond a simple numerical comparison of its greenhouse gas standards to non-existent federal greenhouse gas standards. Its protectiveness determination was also based upon its own analysis of the impact of its greenhouse gas standards on its larger program. California found that its new greenhouse gas standards would yield not only reductions in greenhouse gas emissions but also a net reduction in criteria pollutant emissions."

In a press release which accompanied the issuance of the waiver the EPA Administrator summarized the decision reached today:

"This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law. This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”

The House Committee on Energy and Commerce approved a markup of the proposed American Clean Energy and Security Act of 2009 H.R. 2454 today. In a statement released by the committee, committee chair Waxman stated: ""Today the Committee took decisive and historic action to promote America's energy security and to create millions of clean energy jobs that will drive our economic recovery and long-term growth."

The Bill, which still faces several more legislative hurdles, has four main components:

* A clean energy title that promotes renewable sources of energy, carbon capture and sequestration technologies, clean electric vehicles, and the smart grid and electricity transmission.

* An energy efficiency title that increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry.

* A global warming title that places limits on emissions of heat-trapping pollutants. This legislation would cut global warming pollution by 17% compared to 2005 levels in 2020, by 42% in 2030, and by 83% in 2050. These are science-based targets and within the range agreed to by USCAP.

* A title that protects U.S. consumers and industry and promotes green jobs during the transition to a clean energy economy.

In a statement today, the President proposed new CAFE standards to bring about fuel efficiency and reduce emission of Greenhouse Gases. The President stated that through these new rules "we're seeking to raise fuel-economy standards to an industry average of 35.5 miles per gallon in 2016, an increase of more than eight miles per gallon per vehicle. That's an unprecedented change, exceeding the demands of Congress and meeting the most stringent requirements sought by many of the environmental advocates represented here today."

As further noted in an announcement by the White House, these standards represent a broad consensus of government, industry, the UAW and environmentalists. "Whereas these issues seemed destined to be the subject of eternal political clashing just last year, today the President was joined on stage by the Presidents, CEOs, or other top executives from Ford, Toyota, General Motors, Honda, Chrysler, BMW AG, Nissan, Mercedez-Benz, Mazda, Volkswagon, and the United Auto Workers to announce a new consensus."

The House Committee on Energy and Commerce, subcommittee on Health, introduced a bill yesterday entitled the Climate Change Health Protection and Promotion Act, H.R.2323, aimed at addressing the health effects of climate change. The general purpose of the proposed law is to require that the: "Secretary of Health and Human Services, within 2 years after the date of the enactment of this Act, on the basis of the best available science, and in consultation pursuant to paragraph (2), shall publish a strategic action plan to assist health professionals in preparing for and responding to the impacts of climate change on public health in the United States and other nations, particularly developing nations."

The proposed law appears to be, at least in part, a response to a recent report from the Environmental Defense Fund raising concern over the increasing adverse impacts of climate change upon human health and in a press release issued today the Environmental Defense Fund praised the proposed legislation.

A Utah state senator has introduced a bill which would require undertaking an economic impact review before adoption of any legislation or executive order related to climate change. The economic analysis would include: " (a) economic impacts, if any, on existing Utah industry, business, and consumers; and (b) impact on Utah's ability to attract industry to rural Utah and urban Utah."

The proposed legislation also directs that Utah ensure that any federal regulation related to climate change "is not premature to the investigation, development, testing, redesign, and implementation of climate change technologies on a commercially successful and widespread basis." It will be interesting to see how far this proposal gets in the legislature and, if successful, whether it will start a trend among state legislatures.

In what may signal another break with Bush Administration policy, EPA Administrator Jackson issued a letter in response to a petition from the Sierra Club indicating the EPA would review a Bush Administration memo interpreting the scope of the Clean Air Act. While refusing to stay the Bush era memorandum, the letter states that the memorandum should not be considered the "last word on the appropriate interpretation of the Clean Air requirements."

The memorandum relates to the application of regulations to carbon dioxide emissions. An EPA press release concerning the letter to the Sierra Club states, in part, that the review will ensure that the ultimate interpretation "is consistent with the Obama Administration’s climate change strategy and interpretation of the Clean Air Act." As noted in the press, this review may have significant impacts on the regulation of carbon dioxide emissions from coal-fired power plants.

The new White House Website has already listed an ambitious program for addressing issues of climate change. Included in the goals are (!) within 10 years saving more oil than we currently import from the Middle East and Venezuela, (2) reducing greenhouse gas emissions 80 percent by 2050 and (3) ensuring that 25 percent of our energy comes from renewable sources by 2025.

The agenda also includes creating millions of new jobs related to developing clean energy and and having one million plug-in hybrid vehicles that can run for 150 miles per gallon by 2015. The full agenda is viewable on the Website.

Municipalities in the lower Hudson Valley are joining a small but growing trend in trying to combat global warming by requiring that new building projects and some renovations receive LEED, green building certification.

Earlier this week the County Executive of Rockland County signed a local law which requires that for building projects owned or operated by the County, which cost in excess of one million dollars, there be a “good faith effort” to receive the LEED silver certification. The city of Yonkers is now considering a local law that would require any building receiving a zone change, variance, subsidy or tax break to obtain LEED silver certification. The law is proposed for major renovations or construction of at least 4,000 square feet, with less stringent standard applying to smaller projects.

The New York State Department of Environmental Conservation (DEC) has created an Office of Climate Change which has as its purpose developing “responses needed for significant emissions reductions.” In addition to working on the Regional Greenhouse Gas Initiative (RGGHI) a ten state cap and trade program to reduce CO2 emissions, the office is developing regulatory programs including integrating a climate change element into government decision making.

Silverberg Zalantis LLP has recently contributed to this discussion in an article published in the New York Law Journal. The article entitled “Ultimate Challenge to SEQRA” discusses the use of New York’s SEQRA regulations to address climate change issues during the environmental review process for new projects. In addition, it is our understanding that the Office of Climate Change is looking at possible modifications to the SEQRA regulations in order to implement a more standardized review of GHGs and related issues during the review process.

The Office of Climate Change is also reviewing a wide range of related topics including the need for adaptation techniques and new technologies such as biofuels and carbon capture and storage. No doubt this office will be an important resource to the State of New York in addressing climate change issues going forward.