Articles Posted in Regulations

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In reversals of previous positions taken by the Environmental Protection Administration (EPA), on April 28, 2017 the EPA announced that it took down information on climate change, previously placed on its Website, to “update” language. On the same date the EPA was also successful in having the U.S. Court of of Appeals for the District of Columbia Circuit  hold in abeyance an  action challenging Obama Era clean air regulations, while the EPA reviews the dismantling of those regulations.

On Friday the EPA issued a statement indicating:

“EPA.gov, the website for the United States Environmental Protection Agency, is undergoing changes that reflect the agency’s new direction under President Donald Trump and Administrator Scott Pruitt. The process, which involves updating language to reflect the approach of new leadership, is intended to ensure that the public can use the website to understand the agency’s current efforts. …The first page to be updated is a page reflecting President Trump’s Executive Order on Energy Independence, which calls for a review of the so-called Clean Power Plan. Language associated with the Clean Power Plan, written by the last administration, is out of date. Similarly, content related to climate and regulation is also being reviewed.”

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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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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:

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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.

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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.

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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.

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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:

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The House of Representatives voted this week to bar the Department of Defense from using appropriations to explore or address the impacts of climate change. In an amendment to a defense appropriations bill the following was added:

“None of the funds authorized to be appropriated or otherwise made available by this Act may be used to implement the U.S. Global Change Research Program National Climate Assessment, the Intergovernmental Panel on Climate Change’s Fifth Assessment Report, the United Nation’s Agenda 21 sustainable development plan, or the May 2013 Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order.”

The bill will now be taken up by the Senate.

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On May 9, 2014, the Secretary of the Interior announced the release of the National Climate Change Viewer. The Cimate Change Viewer is interactive, permitting the user to see two scenarios for changes up through 2099.

The description of the Viewer notes:

“The USGS National Climate Change Viewer (NCCV) includes the historical and future climate projections from 30 of the downscaled models for two of the RCP emission scenarios, RCP4.5 and RCP8.5. RCP4.5 is one of the possible emissions scenarios in which atmospheric GHG concentrations are stabilized so as not to exceed a radiative equivalent of 4.5 Wm-2 after 2100, about 650 ppm CO2 equivalent. RCP8.5 is the most aggressive emissions scenario in which GHGs continue to rise unchecked through the end of the century leading to an equivalent radiative forcing of 8.5 Wm-2, about 1370 ppm CO2 equivalent. To create a manageable number of permutations for the viewer, we averaged the climate and water balance data into four climatology periods: 1950-2005, 2025-2049, 2050-2074, and 2075-2099.”

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This week the EPA released for public comment its Draft Climate Change Adaptation Implementation Plans, one for each of its ten Regions and seven National Programs. The notice of availability for public comment explained that in order for the EPA to carry out its functions it must address adaptation to climate change.

” Until now, EPA has been able to assume that climate is relatively stable and future climate would mirror past climate. However, with climate changing at an increasingly rapid rate and outside the range to which society has adapted in the past, climate change is posing new challenges to EPA’s ability to fulfill its mission. The Agency’s draft Implementation Plans provide a road map for the Agency to address future changes in climate and to incorporate considerations of climate change into its mission-driven activities.”

For those interested in commenting the following information should be noted:

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