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Allison Smith focuses her practice in environmental and energy law. Her experience includes CEQA and land use litigation, conducting environmental due diligence, and permitting solar, wind, biomass, geothermal and gas-fired energy facilities. Allison also counsels companies on federal and state air quality and greenhouse gas regulations.

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Late Tuesday, the California Air Resources Board (ARB) released draft amendments to California’s cap and trade regulation, including revisions to the current program in place through 2020, an extension of the program through 2030, and setting the stage for continued emissions reductions under the program through 2050. ARB’s proposed amendments come in the middle of a recent milieu of uncertainty:  pending litigation challenging the legality of the existing program, an opinion from the state Office of Legislative Counsel that ARB lacks authority under AB 32 to continue cap and trade past 2020, unprecedented weak demand at the most recent allowance auction, and legislation proposed in the California Senate to establish a statutory emissions reductions mandate for 2030 still in process this session.  With all of these balls in the air, ARB has doubled down and drafted regulations dropping the program’s emissions cap from 334.2 million metric tons (MMT) of CO2e in 2020 to 200.5 MMT in 2030, with major elements of the cap and trade regulation continuing in effect past 2020 to achieve the emissions reductions.
Continue Reading What You Need to Know about the Proposed Revisions to California’s Cap and Trade Program

Ed. – originally authored by Kevin Johnson and Thomas Wood.

The U.S. Supreme Court’s order on February 9, 2016 staying EPA’s implementation of the Clean Power Plan (CPP) will create at least a year of uncertainty about the shape of the future electric power regulatory framework, with implications for states, utilities and other electric power providers, and for the many other stakeholders potentially affected by the CPP. The CPP is the regulatory program issued by EPA on October 23, 2015, that requires states to develop plans to reduce carbon (CO2) emissions by meeting either state-specific mass caps (tons/year) or state-specific emission rate intensity limits (lb/netMWh).   The CPP seeks to establish a whole new style of regulation using authority under section 111(d) of the Clean Air Act.

Supreme Court Halts CPP Implementation

Twenty-nine (29) states and a number of utilities, labor unions and trade associations challenged the legality of the CPP.  These appellants sought a stay of the rule from the D.C. Circuit in November 2015.  The petition for a stay was denied on January 21, 2016.  The appellants then appealed to the U.S. Supreme Court — a move that most pundits thought was futile as it is extremely rare for the Supreme Court to grant such a stay.  In order to grant a stay, the Court needed to find that if the D.C. Circuit were to uphold the CPP, (1) there is a reasonable probability that four Supreme Court Justices would vote for review of the D.C. Circuit opinion; (2) there is a fair prospect that a majority of the Supreme Court would vote to reverse the D.C. Circuit’s opinion upholding the CPP; and (3) that there is a likelihood that immediate, irreparable harm would result from the denial of a stay.  By granting the stay, it appears that five of the nine Supreme Court justices (Roberts, Scalia, Alito, Kennedy and Thomas) indicated that they believe there is a fair prospect that they would vote to overturn the D.C. Circuit were the D.C. Circuit to uphold the CPP.  The Court’s action prevents EPA from further implementation of the CPP until the petitioners’ appeal is decided. The underlying challenge to the CPP is proceeding on an expedited schedule with oral argument set for June 2 and 3, 2016.

In addition, another factor in the Court’s stay decision was likely the pending deadlines for states to take compliance actions. The deadline for states to submit initial plans demonstrating how they would comply with the CPP was September 6, 2016.  While virtually all states were likely to request an extension for plan submittal until September 2018, states still needed to show progress on their plans by this September, and many states, including several of the 29 appellant states, were beginning the planning process.

Next Steps: Back to the D.C. Circuit
Continue Reading U.S. Supreme Court Stays Clean Power Plan Implementation: Next Steps

Last Friday, September 11, 2015 was the final day for California legislators to pass bills out of the Legislature and on to Governor Jerry Brown for consideration. This year’s crop of bills included something for both sides of the aisle on energy and climate change issues: from the proposed repeal of AB 32, the California law mandating greenhouse gas (GHG) emission reductions, to bills to set a higher GHG reduction target for 2050 and cut petroleum use in half, and from a proposed leap in the state renewable portfolio standard (RPS) to 50% and incentives for geothermal, biomethane, and alternative fuels, to the repeal of solar water heating loan incentives. Some big ticket items passed, most failed to pass out of the Legislature before the deadline and can be considered in 2016 during for the second half of the two-year California legislative session. Time for the post-mortem.
Continue Reading California Legislative Session Wrap-up

This morning, California Governor Jerry Brown announced Executive Order B-30-15, setting a target to reduce greenhouse gas (GHG) emissions in the state to 40% below 1990 levels by 2030. The 2030 target acts as an interim goal on the way to achieving reductions of 80% below 1990 levels by 2050, a goal set by former Governor Schwarzenegger in 2005 with Executive Order S-3-05. In starting his fourth term in 2015, Governor Brown has not been shy in laying out ambitious carbon reduction goals. In his inaugural address, the Governor called for increasing the state renewable portfolio standard (RPS) to 50%, reducing petroleum use in cars and trucks in California by 50%, and doubling building energy efficiency, all by 2030.

State legislators have also introduced bills this session to increase the RPS to 50% and amend AB 32 to reach 80% below 1990 GHG levels by 2050. AB 32, the California Global Warming Solutions Act of 2006, established the current statutory target of reducing GHG emissions to 1990 levels by 2020. The fate of the legislative proposals will be decided later this year, but in the meantime, Governor Brown has directed state agencies to implement measures to achieve the 2030 and 2050 goals under existing statutory authority. The Executive Order also specifically directed the California Air Resources Board to update its Climate Change Scoping Plan to incorporate the 2030 target.
Continue Reading Governor Brown Announces New 2030 Greenhouse Gas Reduction Target for California

Yesterday, California legislators publicly announced a suite of bills to push forward the state’s ambitious clean energy and carbon reduction goals.  California Climate Leadership, a coalition of state senators, including Kevin De León, Ben Hueso, Mark Leno, Fran Pavley, and Bob Wieckowski, discussed the legislation at a press conference shown hereSB 350

In his inaugural address earlier this month, Governor Brown, referenced several ambitious goals he would like to see accomplished over the next 15 years, including  increasing from one-third to 50 percent the amount of California’s electricity that must be derived from renewable resources. On January 28, 2015, a legislator joined in this ambitious goal setting,

Janet McCabe, acting assistant administrator for EPA’s Office of Air and Radiation, announced today that EPA’s comment period for its proposed Clean Power Plan will be extended 45 days from the mid-October deadline to December 1, 2014. EPA’s announcement comes a week after a group of bipartisan U.S. senators asked for additional time to weigh

The U.S. Supreme Court has delivered a stunner with its decision this morning in Utility Air Regulatory Group v. Environmental Protection Agency. The Supreme Court has curtailed the U.S. Environmental Protection Agency’s (EPA) regulation of stationary source greenhouse gas (GHG) emissions under two Clean Air Act permitting programs – New Source Review Prevention of Significant

My colleague, Daniel Lee, followed oral argument yesterday in the U.S. Supreme Court’s consideration of federal greenhouse gas (GHG) regulation in Utility Air Regulatory Group v. EPA, and provides this analysis:

During oral argument for Utility Air Regulatory Group v. EPA this Monday, the Supreme Court conflicted over a number of issues including the application of