April 11, 2013
Last week, at a conference co-sponsored by SPR, government officials, academics, attorneys, and scientists convened at Hofstra University to discuss the legal and practical consequences of Superstorm Sandy. Expert panels addressed the following questions:
- How can local governments physically modify their transportation, power, and sanitary infrastructure to adapt to the impacts of climate change, and by what legal mechanisms?
- Are massive floodgates feasible and desirable for the protection of the New York metropolitan area? Or do “soft” barriers such as man-made wetlands represent a better alternative?
- What planning and land use concepts can be used to encourage smart real estate development that responds to climate change risks?
- Will claims of “scientific uncertainty” hinder climate change adaptation efforts to the same extent that similar claims have hindered climate change mitigation efforts?
- Where and how should coastal communities be rebuilt? What is the legal framework for government-led “strategic retreat” from the coast?
- How may relief be obtained from FEMA? How may relief be obtained from insurance companies?
- What federal, state, and local government programs are available to homeowners and businesses to aid recovery?
- What resources are available to help individual homeowners who have lost everything in the storm? What has been the experience in New York’s underprivileged communities, and can that be improved?
The conference was chaired by SPR principal Michael Bogin and Hofstra Law Professor Carol Casazza Herman, with critical support from SPR principal Pamela Esterman. SPR principal Steven Barshov participated as a lecturer, focusing on the integration of infrastructure resilience into planning and development.
Sponsors of the conference were the American Bar Association Section of Environment, Energy, and Resources, the New York State Bar Association, and SPR.
For more information on Sandy recovery or climate change adaptation in the context of development, please contact Michael Bogin, Steven Barshov, or David Yudelson.
Conference speakers: (L-R) Professor Katrina Kuh, Maurice A. Deane School of Law at Hofstra University; Associate Dean Jennifer Gundlach, Maurice A. Deane School of Law at Hofstra University; Dean Eric Lane, Maurice A. Deane School of Law at Hofstra University; Nassau County Supervisor Ed Mangano; SPR Principal Michael Bogin; Professor Carol Casazza Herman, Maurice A. Deane School of Law at Hofstra University.
March 15, 2013
On April 4, 2013, experts in environmental law, environmental policy, local government, planning, engineering, and environmental science will convene at Hofstra University in Hempstead, NY to discuss lessons learned in the wake of Superstorm Sandy. This conference will examine the significant flaws that Sandy revealed in New York’s housing, transit and electric power systems and infrastructure, and the legal implications of addressing those vulnerabilities and climate-change-related impacts. The panelists will discuss how making communities more resilient will require a rethinking of physical changes to the environment and also a reconsideration of local, federal and state land use and environmental laws and regulations. Insurance and risk management have played, and will continue to play, a central role in response and recovery; those topics, as well as sources of funding for rebuilding and mitigation, will also be addressed.
The conference is co-sponsored by Sive, Paget & Riesel, P.C., the American Bar Association Section on Environment, Energy, and Resources, and the New York State Bar Association. SPR principals Steven Barshov, Michael Bogin, and Pamela Esterman will participate in the conference as co-chairs, moderators, and speakers.
For more information about the conference and to register, please visit the conference website.
February 13, 2013
The D.C. Circuit Court of Appeals recently denied rehearing en banc in cases involving two major Clean Air Act issues: the Cross-State Air Pollution Rule (“CSAPR” or the “Transport Rule”) and a suite of four rules regulating greenhouse gas (“GHG”) emissions from vehicles and stationary sources. The denials set the stage for petitions for Supreme Court review in one or both of the cases, with significant implications for federal regulation of GHGs and conventional air pollutants.
On January 24, 2013, in EME Homer Generation v. EPA, the D.C. Circuit denied EPA’s requests for reconsideration and rehearing en banc of the panel decision striking down CSAPR. As previously discussed on this blog, EPA issued CSAPR in 2011 as its latest effort to address interstate transport of sulfur dioxide (“SO2”) and nitrogen oxides (“NOx”). CSAPR was intended as a replacement for the Clean Air Interstate Rule (“CAIR”), EPA’s previous attempt to implement the “good neighbor” provisions of the Clean Air Act, which prohibit upwind states from causing or contributing to noncompliance in downwind states. Both programs established an emissions trading program for covered states.
CAIR was issued in 2004 and struck down by the D.C. Circuit in 2008, but in a twist on the usual course of events, the Court left CAIR in place while directing EPA to promulgate a new rule that complied with the Clean Air Act. On August 21, 2012, however, the D.C. Circuit vacated CSAPR and the Federal Implementation Plans (“FIPs”) that EPA issued along with it, and directed EPA to continue to enforce CAIR while it promulgates a replacement rule. As a result, CAIR remains in place despite the 2008 ruling that it, too, does not comply with the Clean Air Act. It remains to be seen whether EPA will petition for review by the Supreme Court, or craft another regulation on the interstate transport of air pollution.
On December 20, 2012, the D.C. Circuit also denied rehearing en banc of the Court’s June 26, 2012 decision upholding four rules regulating GHGs: (1) a threshold finding that GHG emissions endanger public health and welfare and are thus subject to regulation under the Clean Air Act (the “Endangerment Finding”); (2) a rule limiting GHG emissions from cars and light trucks (the “Tailpipe Rule”); (3) a rule governing the trigger of GHG emission limits for stationary sources, such as power plants (the “Timing Rule”); and (4) a rule increasing the regulatory threshold for GHGs above the threshold in the Clean Air Act itself, so that only the largest new and significantly modified emitters of would initially be required to seek Clean Air Act permits for their GHG emissions (the “Tailoring Rule”).
Because the thresholds in the Tailoring Rule depart from the regulatory floor contained in the Clean Air Act itself, it was widely viewed as the most vulnerable to challenge of EPA’s GHG regulations. In June, the D.C. Circuit sidestepped the issue by ruling that none of the petitioners had standing to challenge the Tailoring Rule, since, by increasing regulatory flexibility and decreasing regulatory burdens, that rule actually mitigated any potential injury stemming from EPA regulation of GHG emissions.
While the panel opinion upholding the four GHG rules was unanimous, the denial of rehearing en banc drew two separate dissenting opinions – one taking issue with all four rules and another aimed more specifically at the Tailoring Rule – as well as a concurrence supporting the denial from the three judges that initially decided the case. Counsel for one of the trade associations that challenged the rule confirmed that a petition for Supreme Court review would follow “as surely as the climate has been changing since the Earth had an atmosphere.”
For more information on the Court’s rulings, contact Jeffrey Gracer, Jonathan Kalmuss-Katz or Ed Roggenkamp.
July 13, 2012
The Regional Greenhouse Gas Initiative (“RGGI”) – a cap-and-trade program designed to limit power plant emissions in 10 Northeastern states – has been under close scrutiny in recent months as a result of lawsuits in New Jersey and New York, and legislation in New Hampshire. Each of these developments demonstrates the polarization and controversy that continue to surround greenhouse gas regulation, and RGGI in particular, years after the regional trading program first took effect.
In New York, three members of Americans for Prosperity, a conservative political action group, brought a lawsuit against Governor Cuomo, the New York State Department of Environmental Conservation, and the New York State Energy Research and Development Authority challenging RGGI’s validity on multiple grounds. In a decision issued last month, the Supreme Court, Albany County dismissed the action, holding that plaintiffs lacked standing to bring the lawsuit because they did not suffer a distinct injury. It also ruled that plaintiffs’ claims would have been barred (regardless of their lack of standing) based on their failure to bring a timely challenge. The court agreed with the state defendants’ arguments that businesses have adjusted their practices based on RGGI, numerous programs would lose funding if RGGI were invalidated, and that plaintiffs provided no reason why their action was delayed until 2011, approximately six years after the RGGI program was adopted in New York.
In New Jersey, the Natural Resources Defense Council and Environment New Jersey have filed a lawsuit challenging Governor Christie and the New Jersey Department of Environmental Protection’s (“NJDEP’s”) decision to withdraw New Jersey from RGGI. The Plaintiffs allege violations of the New Jersey Administrative Procedure Act, claiming that the Governor and NJDEP failed to provide adequate notice of their withdrawal decision or opportunity for public comment.
In New Hampshire, new legislation was enacted which modifies the state’s participation in RGGI. The bill, which became law without the signature of Democratic Governor John Lynch, was passed in the state’s Republican-controlled legislature after efforts to withdraw the state from RGGI were vetoed by Governor Lynch. The law provides for rebates to ratepayers and diverts funds from the state Public Utilities Commission’s energy efficiency programs. In passing this legislation, New Hampshire also broke with seven other RGGI states by prohibiting the retirement of unsold allowances from the first 14 auctions, effectively diluting the value of new credits. Perhaps most notably, the law allows for New Hampshire to opt out of RGGI if two other states withdraw, or if one state with over 10% of the program’s allowances withdraws.
For more information on RGGI and other climate change initiatives, contact Jeffrey Gracer or Maggie Macdonald.
June 27, 2012
The nation’s first limits on greenhouse gas (“GHG”) emissions survived a major legal challenge yesterday, as the District of Columbia Circuit Court of Appeals upheld two Environmental Protection Agency (“EPA”) climate change regulations on the merits and dismissed challenges to two others for lack of standing. The unanimous ruling from a three-judge panel (which included one of the Court’s most conservative members) resolved consolidated lawsuits filed by states, industry trade associations, and other opponents of the embattled climate regulations.
The litigation challenged four separate, but inter-related, rules: (1) EPA’s threshold finding that GHG emissions endanger public health or welfare, and are thus properly subject to regulation under the Clean Air Act (the “endangerment finding”); (2) a rule limiting car and light truck GHG emissions (the “tailpipe rule”); (3) a rule governing the timing of implementation for stationary source GHG limits (the “timing rule”); and (4) a rule increasing the initial regulatory thresholds for stationary source GHG controls, so only the largest emitters are covered first (the “tailoring rule”).
The Court decisively rejected scientific and legal challenges to the endangerment finding and tailpipe rule, relying heavily upon the Supreme Court’s 2007 Massachusetts v. EPA decision affirming EPA’s authority to regulate GHGs under the Clean Air Act. The Court brushed away claims that EPA had improperly relied upon prior studies and surveys by non-EPA scientists in defending its endangerment finding – with a robust endorsement of EPA’s reliance on the scientific method: “This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The Court also observed that EPA could properly make its endangerment finding as a precautionary measure, to protect public health and the environment, despite alleged uncertainty about the predictive accuracy of climate change models.
The Court proceeded to find that, in light of the endangerment finding, the tailpipe rule was compelled by Massachusetts v. EPA, and that implementation of vehicle emission limits required EPA to control stationary source GHG emissions as well under the Clean Air Act. Rejecting three alternate statutory interpretations advanced by the various Petitioners – which would have limited regulation to mobile sources only – the Court held that “EPA’s interpretation of the governing CAA provisions is unambiguously correct.”
Finally, the Court ruled that because the timing and tailoring rules increase flexibility and relieve regulatory burdens, they actually serve to “mitigate Petitioners’ purported injuries.” As a result, none of the Petitioners had standing to challenge these rules. Although the Petitioners invited the Court to create regulatory chaos by subjecting even small businesses to immediate regulation, thereby inviting Congressional reform of the Clean Air Act, the mere possibility that Congress might enact corrective legislation were the tailoring rule to be overturned was considered too speculative to confer standing. This holding may have been the Court’s most significant, as the tailoring rule – which departed from the Clean Air Act’s express regulatory thresholds – was widely viewed as the most vulnerable on the merits.
The challengers could still seek to appeal the panel’s decision to the full D.C. Circuit or the Supreme Court. They are also expected to pursue legislation curtailing or eliminating EPA’s climate change authority. The ruling may also reignite discussions of comprehensive climate legislation, which has languished since the House approved a broad-reaching global warming bill on June 26, 2009 – three years to the day before the Court’s recent climate change decision.
For more information on the Court’s ruling or U.S. climate regulation, contact Jeffrey Gracer or Jonathan Kalmuss-Katz.
April 5, 2012
On March 27, the U.S. Environmental Protection Agency (“EPA”) proposed a rule limiting carbon dioxide (“CO2”) emissions from new power plants fired by fossil fuels such as coal or natural gas.
- The rule applies to new fossil fuel-fired electric utility generating units in the continental United States; it does not apply to existing units or new “transitional” units that already have received preconstruction air emission permits and that start construction within 12 months of the proposed rule’s publication in the Federal Register.
- Covered power plants would be required to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour.
- This standard is expected to favor natural gas over coal. EPA states that “[n]ew natural gas combined cycle power plant units should be able to meet the proposed standard without add-on controls.” By contrast, coal-fired power plants would not be able to meet this standard without carbon capture and storage technology, which is still under development and is expected to be quite costly.
The proposed rules (New Source Performance Standards under Section 111 of the Clean Air Act) result from a settlement between EPA and a group of states and environmental organizations. These plaintiffs sued EPA in opposition to the agency’s refusal, in 2006, to establish greenhouse gas emission standards for new and modified power plants. EPA was required to revisit this decision in the aftermath of the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, which affirmed EPA’s statutory authority under the Clean Air Act to regulate greenhouse gas emissions.
Under the settlement giving rise to the standards proposed last week, EPA had also agreed to establish CO2 emissions guidelines for existing fossil fuel power plants. EPA has yet to propose such standards, and the time frame for its doing so is uncertain; EPA Administrator Lisa Jackson recently stated, “[w]e don’t have plans to address existing plants.”
The full text of the proposed rule is available here. Public comments are being accepted under Docket ID No. EPA‐HQ‐OAR‐2011‐0660 at www.regulations.gov for 60 days after the proposed rule’s publication in the Federal Register.
March 5, 2012
On February 28 and 29, the D.C. Circuit Court of Appeals heard oral arguments in a series of challenges to the Environmental Protection Agency’s (“EPA’s”) regulation of greenhouse gasses (“GHGs”) under the Clean Air Act, far-reaching litigation spanning dozens of parties and at least four separate rules. Decisions from the panel of Judges David Sentelle, David Tatel and Janice Rogers Brown are expected later this year.
The rare, two-day argument began with a challenge to EPA’s December 7, 2009 finding that emissions of six GHGs, including carbon dioxide, “may reasonably be anticipated both to endanger public health and to endanger public welfare.” This “endangerment finding” is the cornerstone of all subsequent action by EPA to regulate GHGs. The Court appeared reluctant to second-guess the science behind EPA’s determination or to consider non-scientific factors as a basis for overturning it, noting that the Supreme Court had already rejected such lines of argument in its 2007 Massachusetts v. EPA decision. As Judge Sentelle remarked: “Reading some of the briefs, I’d gotten the impression that Massachusetts was not decided.”
Arguments then turned to EPA’s April 1, 2010 “tailpipe rule,” which limits GHG emissions from cars and light trucks. Notably, the auto industry was not among the challengers , as it had participated with EPA in a negotiated rulemaking; instead, it intervened in support of EPA’s regulation. The challenge from some states and trade associations was motivated less by the substance of the tailpipe rule than its role in triggering GHG permitting requirements for power plants and other stationary sources, which took effect once GHGs became “subject to regulation” under the Clean Air Act.
Some of the petitioners contested whether the tailpipe regulations governing mobile sources of GHGs necessarily triggers GHG regulation of stationary sources, arguing that EPA’s historic interpretation of the Clean Air Act to that effect, dating back to 1978, was flawed. Because the 60-day period for challenging EPA’s 1978 regulation had long passed, the petitioners characterized the new GHG rules as “grounds arising after” that prior rule, which raised issues that could not have been previously litigated. At oral argument, the judges focused heavily on this claim and other jurisdictional issues relating to this challenge.
Finally, the arguments closed with a discussion of EPA’s “tailoring rule,” which increased the regulatory threshold for new and modified stationary sources from 250 tons to 75,000 tons of GHGs per year. This is generally considered to be the most vulnerable of EPA’s rules, because the lower thresholds are expressly set forth in the Clean Air Act itself, while EPA’s tailoring rests upon its authority to interpret the statute in a way that avoids the “absurd” result of regulating thousands of smaller emitters. Judge Sentelle, however, questioned the petitioners’ standing to challenge the tailoring rule, stating to industry counsel: “The harm you allege is a regulatory burden. The remedy you seek is a heavier regulatory burden.”
Since the D.C. Circuit previously declined to stay the rules, they will remain in effect while the Court deliberates, with a widely anticipated decision expected later this year. For more information on EPA’s GHG rules and the pending litigation, contact Jeffrey Gracer
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