Articles Posted in Regulations

On November 1, the President issued an Executive Order putting in place several policies to address preparedness for the impacts of Climate Change. The Executive Order states:

“The impacts of climate change — including an increase in prolonged periods of excessively high temperatures, more heavy downpours, an increase in wildfires, more severe droughts, permafrost thawing, ocean acidification, and sea-level rise — are already affecting communities, natural resources, ecosystems, economies, and public health across the Nation…. Managing these risks requires deliberate preparation, close cooperation, and coordinated planning by the Federal Government, as well as by stakeholders, to facilitate Federal, State, local, tribal, private-sector, and nonprofit-sector efforts to improve climate preparedness and resilience; help safeguard our economy, infrastructure, environment, and natural resources; and provide for the continuity of executive department and agency (agency) operations, services, and programs.”

The heart of the Order is the policy that: “[t]he Federal Government must build on recent progress and pursue new strategies to improve the Nation’s preparedness and resilience. In doing so, agencies should promote: (1) engaged and strong partnerships and information sharing at all levels of government; (2) risk-informed decisionmaking and the tools to facilitate it; (3) adaptive learning, in which experiences serve as opportunities to inform and adjust future actions; and (4) preparedness planning.”

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.

The Council on Environmental Quality (CEQ) issued draft guidance on the consideration of GHG’s in the NEPA process.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.

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.

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.

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.”

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.

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.