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:
Nebraska filed suit against the U.S. Environmental Protection Agency (EPA) in federal court on Wednesday, challenging the agency’s newly proposed standards for greenhouse gas emissions from new power plants. Nebraska argues that EPA’s proposed regulation, officially released last week, violates the Energy Policy Act of 2005. The Act prohibits EPA from considering new technology or a level of emissions reduction to be “adequately demonstrated” under the Clean Air Act where the emissions reduction is achieved ‘solely by reason of the use of the technology’ by one or more facilities receiving funding under the Act. Under the Clean Air Act, any new source performance standard (NSPS) must be based on the “best system of emissions reduction” that EPA determines has been “adequately demonstrated.”
EPA has proposed a greenhouse gas NSPS for new fossil fuel-fired boilers, including coal-fired power plants, based on the partial implementation of carbon capture and storage (CCS). EPA’s notice of the proposed NSPS cites to various facilities that have successfully implemented CCS, adequately demonstrating the commercial viability of the technology as a basis for the stringent greenhouse gas emissions standard of 1,000 to 1,100 lb CO2/MWh. The flaw, Nebraska argues, is that the very CCS projects that support EPA’s determination have all received significant funding under the Energy Policy Act, which prohibits EPA from considering such technology as “adequately demonstrated.” Nebraska, and other critics of the proposed standard, argue that the proposed NSPS would severely limit the construction of any new coal-fired plants in the U.S.
Nebraska’s lawsuit may be more of a political statement than anything, however. The suit challenges the proposed rule under the Administrative Procedure Act as a “final” action of EPA. The “proposed” NSPS was just released, however. The proposed rule is open for public comment until March 10, 2014 and may not be finalized by EPA until mid-2015. The Nebraska suit is wide open to challenge on the basis that the case is not ripe for judicial review until a final NSPS has been issued by EPA.
For more details on the proposed NSPS, including the standards proposed for natural gas-fired facilities,Continue Reading Nebraska Sues U.S. EPA Over Proposed Greenhouse Gas Emissions Standards for New Power Plants
This week the California Air Resources Board (ARB) released a draft of its AB 32 Climate Change Scoping Plan Update. The original Scoping Plan was adopted in 2008 and must be updated every five years. The Scoping Plan serves as a blueprint for achieving AB 32’s goal of reducing greenhouse gas (GHG) emissions to 1990 levels by 2020.
The draft Update summarizes programs implemented over the last five years under AB 32 and outlines actions necessary to continue California’s progress toward the 2020 emissions reduction goal. The draft Update shows that California is on track to meet the 2020 emissions reduction goal and inventories the progress made across different economic sectors and programs like cap and trade. With the Update, ARB continues its strategy of achieving AB 32 goals through a mix of emissions reduction measures, including regulatory programs, incentives, and market-based approaches.Continue Reading California Air Resources Board Issues Draft Update to AB 32 Scoping Plan
Today President Obama released his Climate Action Plan and highlighted the key components of the Plan at a speech at Georgetown University. The Plan has three primary goals: (i) cutting greenhouse gas (GHG) emissions in the U.S., (ii) preparing the United States for the effects of climate change, and (iii) leading international efforts to mitigate climate change. During his speech, President Obama listed three measures to address the first two goals: use more clean energy, waste less energy, and cut carbon emissions. The Plan includes some important new directives from the President, it incorporates some initiatives that are already underway and outlines some of the Administration’s intentions, without providing hard timelines or goals.
The Climate Action Plan is limited to initiatives that the President can implement without Congressional approval. Nevertheless, it has the potential to significantly affect a broad range of energy sector interests. A summary of the Plan’s key components follows.
Using more clean energy:
- The Interior Department is directed to support deployment of 10,000 MW of renewable energy on public lands by 2020.
- The Department of Defense (DoD) is directed to build 3,000 MW of renewable energy at military installations by 2025.
- Federal agencies will aim to install 100 MW of rooftop solar on federally-subsidized housing by 2020.
- The federal government commits to obtain 20% of its electricity from renewable sources by 2020.
- The Red Rock Hydroelectric Plant, on the Des Moines River in Iowa, will be placed on the federal Infrastructure "Permitting Dashboard" for high-priority projects.
- Federal agencies will streamline the siting, permitting, and review process for transmission projects.
- The U.S. will seek a global agreement in the World Trade Organization modeled after the 2011 agreement among 21 Asia-Pacific Economic Cooperation economies to reduce tariffs to 5% or less by 2015 on 54 environmental goods, including solar panels and wind turbines.
- The FY2014 budget will include $7.9 billion for clean energy research and development.
- The Department of Agriculture’s Rural Energy for America program will provide renewable energy and energy efficiency grants and loan guarantees directly to agricultural producers and rural small business.
- Natural gas will continue to be relied upon as a “transition fuel” while America works to develop an “even cleaner” energy economy.
The Army Corps of Engineers will not consider GHG impacts in its environmental review of PNW coal export facilities.
Continue Reading Army Corps of Engineers Will not consider GHG impacts
On April 19, 2013, the California Air Resources Board (CARB) voted to link the California cap and trade program to Québec’s cap and trade system. CARB approved changes to the California cap and trade regulation on Friday to allow for the linkage, which is effective January 1, 2014. In practical terms, the linkage opens a new market for greenhouse gas allowances and offsets for California’s regulated entities and offset generators. As Québec’s cap and trade participants enter the California market, regulated entities in California could face tighter competition in bidding for allowances at CARB’s quarterly auctions.
CARB is also planning for additional amendments to the California cap and trade regulation this year. Many of the potential changes were teed up for consideration in CARB Resolutions 12-33, 12-51, and 11-32. Topics up for potential amendment include:
- Refining the definition of resource shuffling and clarifying how CARB will deal with the problem. CARB will base proposed amendments to resource shuffling provisions on the recommended actions presented by staff in October 2012.
- Providing transition assistance to electrical generating facilities with legacy power purchase agreements that do not provide for recovery of the cost of compliance with the cap and trade program.
- Exemption for steam and waste heat emissions from combined heat and power.
- Exemption for emissions from waste-to-energy facilities during the first compliance period (2013-2014).
Yesterday, the Executive Director of the California Air Resources Board (CARB), Mary Nichols, announced that CARB is proposing to delay full implementation of California’s cap-and-trade program for a year. In testimony before the California Senate Select Committee on the Environment, the Economy, and Climate Change, Nichols stated that CARB is proposing to “initiate” the cap-and-trade…
On June 20, 2011, the U.S. Supreme Court issued an opinion on American Electric Power Co., Inc., et al. v. Connecticut, et al.
This case is significant because it dismissed a lawsuit in which several states and environmental groups sought court orders requiring large electrical utilities (alleged to be “the five largest emitters of carbon…