Articles Posted in GHGs

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In October the State of Washington will implement a program to require reduction of Green House Gas (GHG) emissions. The State Department of Ecology issued a new rule last week requiring a gradual reduction in emissions for those who, starting with 2017,  emit 100,000 metric tons or more of carbon pollution.  The threshold for requiring compliance gradually reduces until 2035. The “Covered GHG Emissions” include those from stationary sources, petroleum producers and importers  and natural gas distributors.

The rule requires calculating emissions and keeping records for no less than ten years. There are provisions that permit trading reduction of carbon emissions called Emission Reduction Units (ERUs).

“WAC 173-442-140 Exchanging emission reduction units. Covered parties may transfer ERUs under the conditions in this section
(1) Required documentation.
(a) Documentation of an ERU transfer may consist of contractual arrangements, memoranda of understanding, or other similar records with sufficient detail to document the transfer of the ERU from one covered party to another.
(b) The transfer of ERUs occurs between accounts in the registry established in WAC 173-442-230.
(2) Tracking emission reduction units. The covered party must document each transfer of an ERU in the compliance report in a format specified by ecology and in the registry established in WAC
173-442-230.
(3) Role of third-parties in transactions.
(a) Entities other than covered parties may facilitate, broker, or assist covered parties to transfer ERUs recorded in accounts in the registry, but they may not hold ERUs.
(b) Only covered parties, ecology, and voluntary participants may hold ERUs.”

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The Governor of California is  expected to sign a Bill adopted by the California Legislature that further expands what has been called the Country’s most aggressive climate change legislation aimed at reducing Greenhouse Gases (GHGs). The new Act calls for a significant reduction in GHGs by 2030. The Act is also tied to another Bill just passed by the Legislature, Assembly Bill 197 of 2015-2016, that modifies the authority of the State Air Resources Board.

The legislation is administered by a State Air Resources Board. The companion Bill 197 would implement a legislative oversight committee to ensure the Air Resources Board acts in a manner that, among other things, ensures that plans ” …identify for each emissions reduction measure, including each alternative compliance mechanism, market-based compliance mechanism, and potential monetary and nonmonetary incentive the following information:

(a) The range of projected greenhouse gas emissions reductions that result from the measure.

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The U.S. Court of Appeals for the District of Columbia Circuit issued a decision this week rejecting a challenge to a series of EPA reguations aimed at curtailing GHG emissions from both vehicles and stationary sources. In Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, the Court summarized its decision as follows:

“Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)-which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)-the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.”

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The United Nations Climate Change conference has begun with reports of criticism of the failure of industrialized nations to agree to meaningful targets for emission controls and financial and technical support to developing nations. A substantial amount of the criticism by environmentalists has reportedly been directed at the Bush Administration. Apparently to underscore this criticism, the chief of the U.S. delegation has purportedly indicated that there will not be agreement on specific emissions goals for 2020.

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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.

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One of the interesting aspects of the movement to address greenhouse gas (GHG) emissions is the many layers of government that are getting involved in how to curb global warming and confront the problems of climate change. In October, 2008 Sonoma County California issued its Community Climate Action Plan. The detailed and ambitious plan notes: “(e)very historic change is preceded by a massive collection of individual actions. Because we cannot foresee how change will occur, each action is critical.”

The multi-faceted plan seeks to achieve the previously announced goal of the county and all of the nine cities in the county to reduce GHG emissions to 25 percent below 1990 levels by 2015. The four categories of action include: (1) investment in energy and water efficiency to reduce demand, (2) smart transit and land use by shifting to electric vehicles, walking and bicycling from fossil fuel vehicles, (3) invest in renewable energy resources and jobs and (4) protect forests and farmland and convert waste into energy in order to “conserve and capture.”

Some of the details of the plan demonstrate the need for an extraordinary level of legislative and financial commitment, which if successful may serve as a model for many communities. Among the proposals are to retrofit 80 percent of the buildings in the county to make them more energy efficient, strengthening land use regulations to encourage transit oriented mixed use development and creating incentives for small scale solar, wind and hydro power installations.