Derivatives Trading in Climate Change Legislation

Posted on June 2, 2009 by Stephen M. Bruckner

ACES & Eights? Swaps and Other Derivatives in Climate Change Legislation




Stephen M. Bruckner


            On May 21, 2009, the House Energy and Commerce Committee approved H.R. 2454, the American Clean Energy & Security Act (ACES), by a 33-25 vote. As the Committee touts its efforts on the much-examined markup of H.R. 2454 (aka, “Waxman-Markey discussion draft”), coalitions from each side of the ideological spectrum assail the legislation as toothless and watered-down, or a disaster for the American economy.  The bill has a long way to go, including review by other House committees and, of course, the Senate, so it may be premature for Committee Chairman Henry Waxman to bestow the mantle of “decisive and historic action.

Buried within ACES’ cap-and-trade emissions plan are a series of provisions that detail how big banks, hedge funds, and traders can use complex securities and derivatives to profit from the new carbon allowance market.  We all watched aghast as “credit default swaps” and similar financial alchemy led to the melt down of Wall Street and the credit markets. Do these types of investments have a proper role in climate change and energy legislation?  In a bill that already has plenty of political and policy hurdles, why add financial regulation?

Title III, Subtitle D of ACES, entitled “Carbon Market Assurance”, amends the Federal Power Act to create a financial instrument known as a “regulated allowance derivative”, which can include a “swap agreement”, and directs the Federal Energy Regulatory Commission to establish regulations for these financial vehicles.  Title III, Subtitle E of ACES, entitled "Additional Market Assurance", addresses transactions in derivatives involving energy commodities such as coal, gasoline, and natural gas. These provisions open the door for financial institutions to partake in the new market created by ACES’ emission allowances.  It allows companies, funds, and traders to purchase and trade emission allowances, and to devise complex derivative instruments to sell and trade, picking up commissions and charging fees along the way.  As a result, the theoretical value of the allowances and their derivatives will be determined, in large part, by the manipulation and speculation of financial parties with little or no concern for carbon emission standards or federal climate policy beyond immediate monetary gain. 

Simply put, the emerging market for new carbon allowances created by the bill could be (at best) undermined or (at worst) commandeered by financial contrivances that are already partially responsible for the nation’s current financial instability.  The fundamental value of the new cap-and-trade 'products' will necessarily fluctuate as the emissions market adjusts and stabilizes.  If big banks and hedge funds can use puts, swaps, options and other speculative instruments, which the federal government has yet to capably regulate, the stability of emissions allowances and carbon trading could be placed at risk.  The chaos visited upon the economy at large by these and other financial instruments should cause hesitation and serious consideration as to whether they belong in Congress' first attempt at comprehensive climate change legislation. 


Posted on May 7, 2009 by Jarry Ausherman

In the desert of New Mexico, the effect of another of the new Administration's shifts in previous federal environmental policy is being felt. As difficulties in permitting and building new coal-fired power plants have become more substantial, many power plant projects across the United States that were on the drawing board several years ago have fallen off of it. A notable exception is the Desert Rock Energy Plant, a joint project of the Navajo Nation's Diné Power Authority and Houston-based Sithe Global LLC that would be built on lands of the Navajo Nation. A significant step forward for that project had been EPA's issuance of the PSD permit in July of 2008. But recently, that step forward in air permitting has been followed by an administrative step back.


The Desert Rock Energy Project would involve construction of a 1500 megawatt coal-fired power plant on the Navajo Reservation. EPA's Region 9 had issued a final PSD permit for the project on July 31, 2008. The plant incorporates sophisticated, state of the art air pollution control technology, but it does not employ the coal gasification process known as "integrated gasification combined cycle" technology. Opponents to the project filed petitions with EPA's Environmental Appeals Board for review of the decision issuing the final PSD permit. The opponents raised greenhouse gas issues as well as other air quality and endangered species issues. Project opponents included the State of New Mexico.

In January, Region 9 filed its brief responding to the issues raised by the petitioners except the issue of whether the permit must contain an emissions limit for carbon dioxide. It withdrew the permit's response to comments explaining the basis for not evaluating carbon dioxide emissions in the BACT analysis. Region 9 requested the opportunity to file a Surreply Brief by April 27, 2009 to give EPA officials under the Obama Administration opportunity to consider more fully the positions previously advocated by EPA under the Bush Administration.


The EPA Administrator's office requested that Region 9 reconsider its permitting decision with respect to use of PM10 as a surrogate for PM2.5 to satisfy PSD requirements; consideration of IGCC in the BACT analysis; ESA consultation issues; MACT analysis for hazardous air pollutants; and the sufficiency of additional impact analysis. In response, on April 27, 2009, Region 9 asked the Environmental Appeals Board to remand the PSD permit for reconsideration and development of additional information by EPA. If the motion to remand is granted, the PSD permit will be sent back to EPA for further analysis, which could take many months and trigger another round of public comment.

The request for voluntary remand of this key permit for the high profile Desert Rock Energy Project is evidence of the degree to which the EPA under the current administration is reevaluating previous policy. In the case of Desert Rock, the EPA seeks to reevaluate a permit that it had already issued and defended in an appeal by opponents to permit issuance. If EPA's request for remand is granted, the extent to which EPA changes its permit decision remains to be seen. But the process itself presents the prospect for significant delays and additional public comment at a minimum.

Is the Midwest Climate Initiative D.O.A.?

Posted on April 21, 2009 by George von Stamwitz

A report discussed at the March 31st meeting of the Midwestern Governors Association that highlights significant "leakage" if a regional GHG cap-and-trade program were adopted in the Midwest may be the beginning of the end for the Midwest GHG cap-and-trade program.  Essentially, the report notes the likelihood of significant increases in GHG emissions ("leakage") in other parts of the country that would result from a proposed regional cap-and-trade program.  According to a report cited in Carbon News, a companion publication of Inside EPA, the issue of leakage undermines the Midwest effort and attenuates the level of enthusiasm among state officials for a regional program. 

The report, “Cap-and-Trade Modeling: Initial Policy Run Results,” presented by the Pew Center on Global Climate Change, projects that more than half of the planned GHG emissions cuts would be offset by GHG emissions increases in other states.  Since only six states signed the Midwest Accord, the model assumes that the Midwest program would apply only to power generators within these six states, leading to an increase in electricity imported from non-participating border states.  The governors of Illinois, Iowa, Minnesota, Wisconsin, Kansas and Michigan (along with the Canadian province of Manitoba) signed onto the Midwest Accord in November 2007.  Ohio, Indiana, South Dakota and Ontario are observers to the process. The final meeting of the accord’s advisory group is May 11-12.  

Another factor that strongly contributes to a stalled Midwest GHG effort is the increasing likelihood that Congress will pass a national GHG cap-and-trade program.  On April 2, the House Energy and Environment Committee released a discussion draft of “The American Clean Energy and Security Act of 2009” (the Waxman-Markey bill).  While many important details have been left for future discussion, this comprehensive legislation promotes renewable sources of energy, carbon capture and sequestration technologies, energy efficiency, and would establish a national GHG cap-and-trade program.   The draft bill would apply to all sources greater than 25,000 tons per year and set aggressive reduction targets of 3% below 2005 level by 2012, 20% below by 2020, 42% below by 2030 and 85% below by 2050.  It has been projected that such reductions would virtually eliminate the use of carbon base fuels in the United States.  According to Rep. Waxman, D-California, a final draft of the bill will be sent to the floor for debate by Memorial Day.   

While some semblance of a Midwest GHG model rule may continue, it appears that any such effort under the Accord would serve simply as a prototype for a federal GHG cap-and-trade program (as would the Western Climate Initiative program).  Others argue that if the federal government fails to enact climate policy reasonably soon, the Midwestern Accord could serve as a “backstop,” but the more likely scenario would be the on-going effort at the EPA to regulate GHGs under the Clean Air Act.

Roger Walker
George von Stamwitz
Armstrong Teasdale LLP


Posted on April 8, 2009 by Jeff Thaler

Wind energy is a centerpiece of the Obama Administration’s renewable energy resources program, and coastal wind development offers enormous potential yet faces severe challenges. On April 2, 2009 Secretary of the Interior Ken Salazar spoke of major findings from a report he had commissioned from Interior scientists.  Secretary Salazar said, “More than three-fourths of the nation’s electricity demand comes from coastal states and the wind potential off the coast of the lower 48 states actually exceeds our entire U.S. electricity demand.” 

While the National Renewal Energy Laboratory has identified more than 1,000 gigawatts of wind potential off the Atlantic Coast and more than 900 gigawatts of wind potential off the Pacific Coast, the Interior Report finds the Atlantic Coast to have greater feasible potential for wind energy due to its relatively shallow ocean depths and proximity to population centers.  By contrast, the deeper waters of the West Coast are less ideal for wind power, while Alaska’s high wind and shallow waters create an excellent potential power source-- but it sits too far from the lower 48 states’ consumers.


However, two major obstacles loom for the major renewable energy goals of Secretary Salazar and President Obama:  insufficient electrical transmission grid capacity to bring the power to market, and “environmental sensitivities” such as visual impact complaints.  Each obstacle presents different issues, yet each obstacle can – and MUST – be swiftly solved.

                With respect to transmission siting issues, there are several battles raging in the Courts and Congress at this time.  On February 18, 2009 the Fourth Circuit of the United States Court of Appeals ruled in the case of Piedmont Environmental Council v. FERC, No. 07-1651, 2009 U.S. App. LEXIS 2944 (4th Cir. Feb. 18, 2009), rejecting arguments by the Federal Energy Regulatory Commission (FERC) that the 2005 Policy Act had permitted FERC to order “National Interest” Transmission Projects to go forward even if State Utility Commissions had not approved those projects.  In this case, the New York and Minnesota Utilities Commissions had denied such projects, but those denials were overruled by FERC.  By a 2-1 decision, the 4th Circuit ruled against FERC. 

However, several weeks later, two leading United States Senators-- Senate Majority Leader Harry Reid (D-Nev.) and Senator Jeff Bingaman (D-N.M.)-- each proposed legislation expanding FERC’s authority over the siting of new transmission lines.  Both Senate bills would require all permit decisions and related environmental reviews under applicable federal laws to be completed “not later than 1 year” from the date FERC deems an application to be complete.  Both bills also would provide FERC with siting authority over new interstate transmission lines; FERC would serve as lead agency to coordinate any federal authorizations and environmental reviews; and state and regional permitting entities would be required to develop “interconnection-wide green transmission plans” to be submitted within 1 year to FERC for approval, or else FERC would complete the plan itself.  State Utility Commissioners have testified against these legislative proposals, not surprisingly.

With respect to the environmental “sensitivities” advocated by opponents to many different on- shore and some off-shore wind project proposals in recent years, the two primary issues have been visual impact and wildlife (including marine mammals for off-shore) impacts.  However, frequently missing from the list is the fundamental overriding environmental concern –global warming or climate change.  Very recent scientific work shows that the Noble-Prize winning Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report issued in 2007 is already out-of-date.  For example, carbon dioxide is being emitted into the atmosphere faster than the IPCC had forecast just two years ago.  Moreover, recent studies find that the Arctic and Antarctic regions are warming faster than previously thought, and further find larger-than-expected pools of carbon in Arctic permafrost, which when released will accelerate levels of greenhouse gases in the atmosphere.  Moreover, since the 2007 IPCC report was issued, unexpectedly rapid melting of the vast Greenland Ice Sheet indicates that sea levels around the world could rise roughly 3 to 6 ½ feet by the end of the Century – almost triple that of the 2007 projections. 

Ocean and terrestrial plant and wildlife habitats already are being damaged by climate change, with the result that many of the birds, mammals, plants, trees and fish which are the subject of concern for some groups opposing wind projects will – in the absence of immediate and rapid facilitation of the siting and construction of clean energy projects – either be driven extinct or forced to move hundreds of miles northward in the United States or into Canada in order to survive during the lifetimes of our children and grandchildren.  Likewise, the environmental “concern” of scenic impact from wind turbines will – again in the absence of rapid facilitation of the siting and development of clean energy projects – be adversely impacted by accelerating climate changes that include greater presence of pests capable of destroying forest species and certain plant life.

                In Maine, an Ocean Energy Task Force has been hard at work over the past five months to meet the Governor’s Executive Order to increase our energy independence and security, reduce our substantial reliance upon fossil fuels, and substantially reduce our greenhouse gas emissions by, in part, developing a strategy to identify and recommend solutions to overcome “potential economic, technical, regulatory, and other obstacles to vigorous and expeditious development of grid-scale wind energy generation facilities in Maine’s coastal waters and adjacent federal waters.”  Tidal and wave power options are also being considered.  Sometime this month the Task Force will preliminarily forward to the Maine Legislature proposed legislation that would create a “General Permit” for off- shore wind energy demonstration projects at certain designated sites along the coast of Maine.

In conclusion, global warming, ocean energy, and our electrical grid system are each critical components to the urgent environmental and economic mandates requiring us to engage in a race, akin the 1960s’ race to the moon, to achieve what previously many may have thought to be unachievable – independence from foreign sources of fuel, independence from use of fossil fuels, and a deceleration of global warmer changes upon our hometowns, states, country and world.

Oregon as Center of Green Energy?

Posted on February 23, 2009 by Richard Glick

 By: Rick Glick and David Blasher of Davis Wright Tremaine, LLP

Many postings on this site have featured local and regional climate change policy initiatives. Oregon is no exception, but at the center of Governor Ted Kulongoski’s climate change strategy is making the state a hub of green technology development. Thus, the Governor seeks to combine greenhouse gas reductions with economic recovery. To that end, the state has used tax and other incentives to lure foreign clean technology investment to the state. Early signs are positive. The German solar cell company Solar World has recently taken over a stilled chip fabrication plant in the Portland suburbs and Sanyo is opening a solar cell facility in Salem. Vestas American Wind Technology, the largest manufacturer of wind turbines in the world, has announced plans to construct a 400,000 to 600,000 headquarters building near downtown Portland. As Governor Kulongoski declared in his 2009 State of the State address, “There is a green revolution stirring in America, and Oregon is the beating heart of that revolution.” 


To this end, the Governor is jockeying Oregon into a favorable position with President Obama's agenda of creating jobs that foster and incorporate sustainable energy projects. In order to maximize funds that Oregon will receive from the federal stimulus package, the Governor has established a state council called the Oregon Way Advisory Group. The Group is comprised of private business leaders and public officials who have an interest in developing sustainable energy proposals that will highlight Oregon’s green expertise. The Governor believes that by developing innovative projects to encourage job creation in green technologies, Oregon will have a leg up in the race for stimulus cash. “This approach will ensure that Oregon remains a leader in the green revolution,” the Governor said.


The Governor has proposed a legislative package for the current session that will address green energy and climate issues. Central among the Governor’s endeavors is an expansion of the Business Energy Tax Credit in order to attract new green industries to Oregon. The new green bills in the legislature include the following:


·        SB 80 will establish a cap-and-trade system to reduce greenhouse emissions by encouraging innovation and efficiency among Oregon’s industries. 


·        SB 79 is designed to increase energy efficiency in buildings by giving performance certificates to business to enable them to monitor efficiency in new and remodeled buildings. The ambitious goal is to reach zero net emissions by 2030, and in so doing, set Oregon as a leader in creating green building techniques.


·        SB 168 encourages energy independence of the state government by allowing energy efficiency projects on state lands and buildings, thus helping the state government to operate entirely on renewable power.


·        SB 201 is designed to provide an additional $4 million to weatherize and retrofit the homes of 400 low-income families each year, cutting energy costs for families by an average of $314 a year.   


·        SB 603 would stop Oregon from building any new dirty coal power plants and would require new power sources to be at least as clean as natural gas plants. 


·        HB 2120 will reflect the priority of providing more transportation choices for Oregonians in order to reduce emissions and traffic, to improve health, and to cut gas costs. 


·        HB 2121 will encourage the development of solar energy by directing the PUC to integrate up to 17 megawatts of solar energy into Oregon's electricity mix. Oregon launched the nation’s first solar highway at the I-5/I-205 interchange last year. Using Oregon manufacturers for the solar panels and emerging small Oregon businesses to install the solar system will supply jobs and renewable energy today and into the future.


·        HB 2180 would create an Oregon Renewable Energy Fund to provide grants to smaller community renewable energy projects. This bill also seeks to expand the Business Energy Tax Credit to provide a fifty percent tax credit for large-scale energy efficiency investments by businesses. The bill will also encourage sustainable bioenergy such as biofuels that do not compete with good supplies. Finally, HB 2180 will give the Oregon Department of Energy the flexibility to adjust tax credit incentives to encourage the development of the next generation of low and zero emission vehicles.


·        HB 2181 will give local governments bonding authority to provide loans to residential and business energy efficiency projects.


·        HB 2186 authorizes the citizen-comprised Environmental Quality Commission to develop reduction strategies including a low carbon fuel standard and restrictions on the unnecessary idling of trucks and commercial vehicles.


Governor Kulongoski views the current economic crisis as an opportunity to embrace sustainable energy projects that will make Oregon a leader in the future of green industries. As the Governor put it, “My message should be unmistakable – and it is the same message I conveyed to business and government leaders in Japan and China: Oregon is open for business. Especially green business.”


Posted on February 9, 2009 by Stephen E. Herrmann



The One-Watt Initiative is a fairly simple regulatory program proposed for eliminating unnecessary electricity losses from electronic equipment in standby mode, known as phantom loads. The European Union, Canada, Korea, Japan and China have all taken action. The United States needs to step up to action through the federal government or the states. President Obama's administration should be urged by all of us to adopt a policy in 2009. Because of the diverse pressures on the Federal government, simultaneous pressure should be exerted on all states to adopt the One-Watt policy.



Chances are that even environmental lawyers ignore the high energy costs of “phantom load.” But, now is the time to get regulation started.

Phantom load is the electricity consumed by a device when it is turned OFF.[1] Devices that have a phantom load are sometimes referred to as “vampires.”   For example, a television consumes electricity as it waits for the “on” button on the remote to be hit. Heavy phantom load users include the “power brick” adaptors that charge or operate cell phones, laptop computers, cordless drills, answering machines, radios, incheck printers and many other residential devices. These adapters are actually small transfers, turning AC electricity from the wall outlet into the DC electricity for use by the device. While one of these devices may only consume a small amount of power (e.g., 3-20 watts), a dozen or so of them running simultaneously and continuously, consume a significant amount of energy. What is worse is that even when not charging the cell phone or the battery for the cordless drill, that AC adapter may continue to consume power just because it is plugged into the wall.



In the United States, the phantom load make up about six percent of the total, and around ten percent of residential consumption. 

As the United States Department of Energy stated: 

“Many appliances continue to draw a small of power when they are switched off. These “phantom” loads occur in most appliances that use electricity, such as VCRs, televisions, stereos, computers and kitchen appliances. In the average home, 75% of electricity used to power home electronics is consumed while the products are turned off. This can be avoided by unplugging the appliance or using the power strip and using the switch on the power strip to cut all power to the appliance.”

The British Government’s 2006 Energy Review found that standby modes on electric devices accounted for 8% of all British domestic power consumption. A similar study in France in 2000 found that standby power accounted for 7% of total residential consumption. Further studies have come to similar conclusions in other developed countries, including the Netherlands, Australia and Japan. Some countries estimates the proportion of consumption due to standby power as high as 13% in some countries. 


one-watt initiative:

The One-Watt Initiative is an energy saving proposal by the International Energy Agency to reduce standby power in all appliances to just one watt. The One-Watt Initiative was launched by the IEA in 1999 to promote, through international cooperation, that by 2010, all new appliances sold in the world would only use one watt in standby mode. On July, 2005, at the Gleneagles Summit in Scotland, the G8 countries signed an endorsement to, among other things, "promote the application of the IEA's 1 Watt Initiative". It is estimated that, if implemented, leaking electricity would be cut by as much as 75% when the existing stock of appliances is replaced. Further savings would occur as the number of vampire appliances increase.



An international group of experts was assembled to define standby power and establish a common test procedure. An internationally sanctioned definition and test procedure was adopted by the International Electrotechnical Commission (IEC 62301).

On January 9, 2009, the European Commission adopted a regulation laying down energy efficiency requirements, which is intended to cut the standby electricity consumption by almost 75% by 2020. As of 2010, the standby power consumption of new products has to be less than one watt or two watts. These values will be lowered in 2013 to 0.5 watt and one watt, which is close to the levels achievable with the best available technology.

NR Canada by Regulation is proposing that the Tier 1 energy efficiency performance standards for certain standby power will apply to products manufactured after June 1, 2009. The effective date for the Tier 2 standards will be applied to products manufactured after June 1, 2011.

Both South Korea and Australia have introduced the one watt benchmark in all new electrical devices, and according to the IEA, other countries, notably Japan and China, have undertaken “strong measures” to reduce standby power use. 


one-watt initiative in the united states:

So far the United States government's only action has been Executive Order 13221 signed by President George W. Bush in 2001. The Executive Committee states that every governmental agency “when it purchases commercially-available, off-the-shelf products that use external standby power devices, or that contain an internal standby power function, shall purchase products that use no more than one watt in a standby power-consuming mode.”

The State of California currently has an Appliance Efficiency Regulation which includes standby power limits for three consumer audio and video equipment categories (compact audio products, televisions and DVD players and recorders). A few other states have announced intentions to follow the California regulations for standby power limits but have not done so.



This is an excellent issue to be pushed by any environmental group or generally concerned citizens. With the backing it has internationally, lobbying should garner little resistance. The United States or individual states should take action in 2009.

[1] There are issues about a definition for standby power. However, for purposes of general regulations, standby power is the lowest level of electricity consumed by appliances, which cannot be switched off (influenced) by the user, and may persist for an indefinite time when an appliance is connected to its main electricity supply.

A Quick Economic Stimulus Meets a Slow Environmental Process - Are NEPA Waivers Needed to Reach Energy Independence?

Posted on January 30, 2009 by Bradley Marten

President Obama has pressed Congress this week to enact an economic stimulus package that would “double our capacity to generate alternative sources of energy like wind, solar, and biofuels . . . and build a new electricity grid that lay down more than 3,000 miles of transmission lines to convey this new energy from coast to coast.”[i] On Wednesday, January 28, 2009, the House passed the American Recovery and Reinvestment Act of 2009 (H.R. 1), which contains nearly $15 billion in capital investments and loan guarantees for renewable energy projects and new electric transmission lines, and $18.5 billion for energy efficiency programs.  The Administration’s stated goal is to spend this money in the next 18 months. This may be possible for the energy efficiency projects such as weatherizing homes and government buildings.  But for dozens of new wind farms and thousands of miles of transmission lines, it is not, and a good part of the reason is that those projects have yet to undergo environmental review or receive necessary permits.

[i] These remarks came in the President’s first weekly address, which was delivered on Saturday, January 24, 2009. The address can be viewed at this link.


Typically, siting a transmission line, wind farm, or other major energy facility involves obtaining a long list of environmental permits, each of which has a review process that can be used by opponents of the project to delay and sometimes defeat it. Moving infrastructure projects forward quickly will only be possible if Congress and the Administration speed up the environmental review and permitting process.  

In a January 26, 2009, report, the Congressional Budget Office estimates that it will take up to seven years to spend the money that H.R. 1 dedicated to expanding alternative energy. Experience teaches that this estimate may be overly conservative. For example, the Arrowhead-Weston Transmission Project, a 220 mile transmission line from Wisconsin to Minnesota, took nine years to permit and construct, even though all but 50 miles of it were in existing transmission line corridors. Southern California Edison’s Tehachapi Transmission Project, a 250 mile transmission project to deliver electricity generated from wind farms in Southern California, took over 10 years to design, permit, and begin construction. Indeed, portions of the project are still undergoing environmental review by the U.S. Forest Service and others.

Recently, California Governor Arnold Schwarzenegger requested up to $44 billion for transportation, energy and water projects in California, claiming that these projects will create as many as 800,000 new jobs.  Knowing that traditional environmental review would slow short-term job creation, Governor Schwarzenegger asked the Obama Administration to “waive or greatly streamline National Environmental Protection Act requirements consistent with our statutory proposals to modify the California Environment Quality Act for transportation projects.”

The proposal drew immediately fire from environmental groups. In a January 13, 2009, letter to House and Senate Democratic leaders, the Environmental Defense Fund, the Natural Resources Defense Council, the League of Conservation Voters and Environment California called Governor Schwarzenegger’s proposal “unproductive and harmful” to the federal debate over reviving the economy.  “Inevitably, in the course of congressional consideration, special interests will assert that we cannot afford the NEPA process in a time of national urgency,” they said.  “The truth is that we cannot afford that kind of leap-before-you-look rashness.” 

The new Administration must navigate this tension – quickly addressing the economic crisis while maintaining the integrity of the environmental review process. Doing so will require identifying ways that environmental review and permitting can be streamlined and modernized, alongside the infrastructure system.  We ought to be able to get wind farms and bridges and light rail built in a time frame that provides the short-term stimulus our economy needs, and also allow for sufficient environmental review to make sure our resources are protected.   This article lays out some of the options the new Administration may wish to consider as it seeks to balance job creation with environmental stewardship.

Approaches for Streamlining the Environmental Review Process

Use Existing Provisions Allowing Temporary Waivers


Many environmental regulatory statutes contain waivers of applicable requirements in response to natural disasters or other emergency conditions.  For example, the Stafford Disaster Relief and Emergency Assistance Act authorizes NEPA waivers to facilitate prompt responses to natural disasters.[1]  Similarly, the White House Council of Environmental Quality (CEQ) is authorized to approve “alternative arrangements” allowing federal agencies to modify or limit NEPA review in response to natural disasters.[2]  Other federal environmental laws with emergency response provisions include the Clean Water Act[3] and CERCLA.[4]

In response to Hurricane Katrina, CEQ approved expedited NEPA review procedures for certain U.S. Army Corps of Engineers flood control projects.  EPA temporarily waived certain Clean Water Act, Clean Air Act, and other environmental regulations in Katrina’s wake.  Both Louisiana and Mississippi issued similar emergency administrative orders, temporarily suspending certain environmental regulations to facilitate clearing hurricane debris and other emergency response actions.

Waivers Based on Grounds of National Security

In 2002, after the Natural Resources Defense Council obtained a preliminary injunction halting the U.S. Navy’s use of a low-frequency, active, surveillance towed array sonar system,[5] President Bush issued a “Presidential Exemption from the Coastal Zone Management Act,”[6] in order to “ensure effective and timely training of the United States naval forces in anti-submarine warfare using mid-frequency active sonar.”  The Presidential exemption allowed the Navy to train and certify strike groups capable of deployment “in support of world-wide operational and combat activities, which are essential to national security.”

The United States Supreme Court upheld the President’s action, finding that the public interest in adequately training the Navy’s antisubmarine forces “plainly outweighs” conservationists’ interests in studying marine mammals that may be injured by sonar exercises.[7]

Legislative Exemptions for Specific Projects


Congress has also periodically either limited or exempted review under NEPA and other environmental statutes for specific projects or categories of projects.  For example, the Energy Policy Act of 2005 modified the environmental compliance requirements for a broad range of energy-related projects.  The modified environmental compliance measures included:

  • Establishing a rebuttable presumption that certain oil and gas projects conducted on federal land are categorically exempted from NEPA review (§ 390);
  • Exempting hydraulic fracturing in aid of oil, gas, and geothermal energy extraction from certain requirements in the Safe Drinking Water Act (§ 322);
  • Exempting oil and gas exploration, production, and transportation construction projects from the Clean Water Act’s construction stormwater regulations (§ 323);
  • Requiring EPA and federal land management agencies in Western states to develop a pilot project to expedite environmental review and permitting under NEPA, the ESA, the Clean Water Act, and other federal statutes (§ 365);
  • Expediting the permitting process for natural gas facilities located on federal lands (§ 366); and
  • Shortening the time frame for appealing permitting decisions under the Coastal Zone Management Act (§ 381).

Congress has also exempted or provided limited NEPA review for other projects, for example:

·        The TransAlaska Pipeline was exempted from NEPA review after completion of the initial EIS (43 U.S.C. § 1625(d));

·        Certain actions taken pursuant to the Clean Air Act are exempted from NEPA review (15 U.S.C. § 793(c)(1));

·        Department of Energy decisions to grant or deny exemptions from regulations governing fuel use at coal-fired power plants are exempted from NEPA review (42 U.S.C. § 8473);

·        For certain retrievable radioactive waste storage projects, an Environmental Assessment (as opposed to an EIS) constitutes sufficient compliance with NEPA (42 U.S.C. § 10155(c)(2)(A));

·        Alternate environmental review procedures have been established for determining surface transportation rights-of-way in the Arctic National Preserve (42 U.S.C. § 410hh(4)(d); and

·        Certain Department of Housing and Urban Development funding decisions are exempt from NEPA review, based on certification of compliance with state and local laws (42 U.S.C. § 3547(2)).

Using Streamlined Environmental Review to Address Economic Conditions


While legislative, regulatory, and executive precedent exists for either waiving or limiting environmental review, those precedents have rarely been used to justify waiving environmental review on the grounds of an economic crisis.[8]  But precedent exists for using “alternative arrangements” for environmental review in response to economic concerns.  In 1980, after General Motors threatened to build a new manufacturing facility outside the city limits unless the city cleared and delivered an appropriate site for the facility, the City of Detroit declared a state of emergency based on an economic crisis.  In September 1980, CEQ approved an “alternative arrangement” under NEPA allowing the Department of Housing and Urban Development to release loan guarantee funds prior to the completion of NEPA review.[9]

The challenge for the new Administration and Congress is to strike a balance between expediting environmental review while maintaining sufficient oversight to prevent bad decision making.  Options to achieve that goal include: (1) expediting funding for “shovel ready” projects which already have undergone federal and state environmental review and obtained necessary permits; (2) using programmatic environmental review of project categories that would obviate the need for project-specific (and often redundant) environmental reviews; (3) providing limited exemptions or streamlined environmental review for specific categories of projects; and (4) limiting judicial review of final agency approvals for projects funded by the stimulus bill, while providing for oversight, review, and approval by CEQ.

For more information, please contact Bradley Marten

[1] See 42 U.S.C. § 5159.

[2] 40 CFR § 1506.11.

[3] Under 40 CFR § 122.3, the President or an agency acting with delegated Presidential authority may grant a waiver of the NPDES requirement if necessary to address substantial threats to public health or welfare. EPA invoked this exception in response to Hurricane Katrina. Another exception is 40 CFR § 122.41(n), which allows a wavier in the event of an “upset,” which is the temporary failure to comply with NPDES permit conditions based on factors that are beyond the reasonable control of an operator, for example, a power failure or a large spill of contaminants into a collection and treatment system.

[4] CERCLA provides the President and EPA with broad authority and flexibility to undertake response actions whenever there is a release or threatened release of a hazardous substance which presents an imminent and substantial danger. See 40 CFR § 300.400(e)(1).

[5] See NRDC v. Evans, 232 F. Supp.2d 1003 (N.D. Cal. 2002) (for more information on this decision, see Colleen C. Karpinsky, A Whale of a Tale: The Sea of Controversy Surrounding the Marine Mammal Protection Act and the U.S. Navy’s Proposed Use of the SURTASS-LFA Sonar System, 12 Penn St. Envtl. L. Rev. 389 (2004)).

[6] Per its terms, the Presidential Exemption was based on the “Constitution and the laws of the United States, including section 1456(c)(1)(B) of title 16, United States Code.”

[7] Winters v. Natural Resources Defense Council, Inc., 555 U.S. ___, 129 S. Ct. 365 (2008).

[8] While NEPA allows agencies to allow “alternative arrangements” suspending or modifying environmental review, CEQ regulations limit their applicability to “actions necessary to control the immediate impact of the emergency.” 40 CFR § 1506.11 (emphasis supplied).

[9] Although the full NEPA review was eventually completed, the “alternative arrangement” allowed HUD and the city to expedite project activities in response to an economic crisis. The facts of the Detroit “alternative arrangement” are summarized at Crosby v. Little, 512 F. Supp. 1363 (E.D. Mich. 1981).


Posted on January 20, 2009 by David Flannery

The Advisory Groups working on the Midwest Greenhouse Gas Reduction Accord and the Midwest Governor’s Association Platform met in Indianapolis on January 14 and 15, 2009 for the purpose of advancing the development of recommendations for a regional program to reduce greenhouse gases. While the program being developed contemplates a regional cap and trade program, much work is being focused on the development of complimentary policies that would be implemented outside the cap and trade program. 


            The December 2008 draft recommendations of the Advisory Group, calls for a cap and trade program that would be applied to all six greenhouse gases. Initially, the cap and trade program would apply to electricity generation and imports, industrial combustion sources, and industrial process sources for which there are credible measurement in monitoring protocols. In addition, transportation fuels are being considered for inclusion in the cap and trade program based on the results of economic modeling that is currently being performed. Heating fuels will be included in the second three year compliance period. 


Significantly, the cap and trade program would be applied both to electricity generated within the region and to electricity imported into the region. In the latter case, the point of regulation for the program would be entity that first delivers electricity into a participating jurisdiction for consumption in that jurisdiction. The Commerce Clause implications on such an approach have yet to be tested. 

            Allowances under the cap and trade program are proposed to be distributed for climate related purposes. Among the purposes that have been identified by the Advisory Group are: 

  • accelerating transformational investments; 
  • mitigating transitional adverse impacts of the program; and
  • addressing harmful impacts due to climate change.

Individual states would be called upon to make a determination as to whether allowances would be auctioned or allocated for free. 


            Offsets would be encouraged under the draft recommendations for entities not covered by the cap and trade program. The Advisory Committee has yet to determine how much of the cap could be met by offsets, although a range of 10-50% are being considered. The final value would be set once economic modeling data becomes available. Initially, offsets would be limited to those which occur within the states and provinces that elect to participate in the program. 


            Beyond the cap and trade program, the recommendations contemplate the development of complimentary measures that would reduce greenhouse gas emissions. These complimentary measures include, among other things:

  • energy efficiency; 
  • low carbon fuels; 
  • management of vehicle miles; 
  • biomass;
  • renewable electricity; 
  • transmission planning and siting; and
  • carbon capture and storage. 

These potential policies are now being evaluated with economic modeling. The Advisory Group received a report this week on the results of the modeling of the base or reference case. Efforts will not turn to modeling policy cases. It is anticipated that the policy cases to be modeled will include: 

·        the cap and trade program alone;  

·        the complimentary measures alone; and

·        the combination of the cap and trade program and complimentary measures. 

It is anticipated that the results of this modeling will be available by the time the Advisory Group meets in March at a date and location that have not yet been determined. 

Final recommendations are expected to be issued during the third quarter of 2009. 


For more information regarding these activities, visit

The Role of States in Climate Change Regulation

Posted on January 14, 2009 by Roger Ferland

50 Ariz. L. Rev. 674-938 (2008)


            The primary function of the articles produced to date for this blog has been to alert colleagues of current developments of which they should be aware. This article’s purpose, however, is broader. There appear on occasion in law reviews and other publications valuable perspectives on law and policy issues in areas like climate change that are worthy of attention but might escape notice. The above-referenced symposium is such a document. In the spirit of full disclosure, it should be noted that the authors of the majority of the articles are law professors and consequently it is necessary to wade through a great deal of legal theory to glean the valuable nuggets of insight that are prevalent throughout the document.


The basis theme of the articles and commentaries is that states have a significant and critical role to play in the reduction of greenhouse gases (GHGs) even after the likely enactment of federal cap-and-trade legislation during the next two years. That role would not seem to be immediately apparent, particularly if EPA proceeds to fill those areas of regulation not covered by cap-and-trade legislation by maximizing the agency’s scope of regulation of GHG’s under the Clean Air Act. Indeed, several of the authors concede that, following national legislation, the climate benefits of state initiatives “would be so small as to be undetectable.” Nevertheless, the authors suggest that states and localities will continue to have a unique and important role to play, not so much in directly achieving reductions in GHGs through regulation, but by providing or encouraging the mechanisms to indirectly achieve those reductions. This facilitation role takes a number of forms:

  • State or local support of research and development of new renewable energy and innovative GHG control technologies through targeted subsidies and tax credits
  • Continuation and expansion of renewable portfolio standards imposed by state public utility regulatory bodies
  • State-level energy efficiency standards
  • Green building codes and certification systems
  • Gap-filling environmental regulation that forces the adoption or diffusion of existing technologies

            The articles also provide a comprehensive treatment of the potential legal barriers and drawbacks to state actions. One of those drawbacks that is discussed by several of the authors is the cost externalization produced by individual state initiatives. The most cited example of a cost externalization is the push by California and other states allied with California for automotive emission standards for GHGs. While California’s actions seem laudable on their face and it is likely that EPA will grant the waiver that California needs to enforce the standards, the cost of complying with the standards will ultimately be borne by the rest of the country even though they had no say in their adoption.

            The primary legal barriers to state action are preemption and its allied concept, the so-called dormant Commerce Clause. The range of legislation currently before Congress addresses preemption by either expressing a clear intent to broadly preempt state initiatives as far as GHG regulation or no preemption language thereby leaving it up to the federal courts to apply general principles of preemption to specific state actions. The authors tend to favor limiting the applicability of preemption, particularly when the state action does not directly impair the sale of allowances or does not directly impair the functioning of the other mechanisms necessary for a successful national cap-and-trade program. Thus, such state measures as renewable energy portfolio requirements, measures that encourage technological innovation or diffusion of existing technology and even product efficiency standards that are more restrictive than national standards, should not be subject to being invalidated because of preemption. Conversely, state restrictions on the sale or purchase of emissions allowances even as part of the direct regulation of GHG emissions would probably be preempted by federal legislation.

            A similar analysis is followed concerning the applicability of the dormant Commerce Clause to state climate change initiatives. A state’s regulations that directly discriminate between, for example, in-state and out-of-state electric utility companies, particularly if the effect of such discrimination was to interfere with the functioning of the national cap-and-trade program, would clearly run afoul of the dormant Commerce Clause. However, the range of state measures discussed in the articles would not seem to raise either dormant or general Commerce Clause issues, particularly if the national legislation, as seems likely, contains a savings clause like that in Section 116 of the Clean Air Act that explicitly allows states to adopt “standards or limitations” that are more stringent than federal standards or limitations.

            Obviously, the foregoing vastly oversimplifies what are a number of complex topics and their analyses, but it should provide enough of an overview of the content of the symposium to motivate interested parties to pursue the full benefit of its articles. As all of the authors note, it was the states, in the absence of federal action, that have been the leaders in GHG regulation and it is their initiative, experience and expertise that ensure that they will have a role and continued interest in addressing climate change even in the face of federal legislation.

Can Clean Energy Save America?

Posted on December 29, 2008 by Christopher Davis

America, and our new President, face a daunting array of challenges as we close out 2008 and enter the New Year. These include a general economic meltdown, widespread job losses, a collapsing auto industry, unsustainable dependence on foreign oil, climate change and a protracted war in Iraq, among others. Many of these problems relate directly or indirectly to our production and consumption of energy.

The initial focus of the incoming Obama administration is rapid deployment of a massive economic recovery package. Early indications, including the President-elect’s post-election statements and his cabinet-level appointments, suggest that “green jobs” and “green infrastructure” are likely to play a prominent role in Mr. Obama’s efforts to restart the U.S. economy, as reflected in the Presidential transition website.  A number of commentators have talked of a “Green New Deal” as the key to revitalizing our economy. They may just be right.


From 2003 through the third quarter of 2008, private U.S. investment in “clean technologies” (mostly alternative energy-related) surged, totaling about $2.5 billion in 2007 and at least $3 billion in the first three quarters of 2008. However, due primarily to the credit crunch and unavailability of project financing for capital-intensive renewables projects such as wind farms, such investment sagged substantially in the fourth quarter. Despite considerable investor interest, many renewable energy projects have been put on hold. This is bad for both the economy and the environment.

There is much that the federal -- and state -- governments can do to help stimulate investment in clean energy, using both carrots (subsidies) and sticks (regulatory mandates). On the subsidy side, government loans or loan guarantees could do much to ease the credit crunch and facilitate the financing of renewables projects. Other tools include expanding tax credits, governmental procurement of renewable energy, increased federal research and development grants for clean energy technologies, etc. Potential mandates include a federal renewable portfolio standard for electric utilities, increased auto fuel efficiency standards, stronger building and appliance efficiency standards and regulation of greenhouse gas emissions via EPA rule or cap-and trade climate change legislation. Such measures could materially improve the economics of alternative energy production and boost efficient energy use.

Governmental and private sector investment in renewable energy and other “clean technologies – including wind, solar, geothermal and tidal power; advanced biofuels, “smart-grid” development, equipment efficiency, energy storage, green buildings, electric cars and “clean coal” technology – can do much to reinvigorate our economy, increase our energy security and reduce our greenhouse gas emissions. Such investment can also help to jump-start American innovation and entrepreneurship, reinvent our declining manufacturing sector, and improve our balance of payments through reduced oil imports and clean technology exports. Moreover, policies that promote sustainable energy production and consumption can help create a shared sense of national purpose to which everyone can contribute.

So can clean energy save America? We may soon get a chance to find out.

Can Clean Energy Save America?

Posted on December 29, 2008 by Christopher Davis

America, and our new President, face a daunting array of challenges as we close out 2008 and enter the New Year. These include a general economic meltdown, widespread job losses, a collapsing auto industry, unsustainable dependence on foreign oil, climate change and a protracted war in Iraq, among others. Many of these problems relate directly or indirectly to our production and consumption of energy.

The initial focus of the incoming Obama administration is rapid deployment of a massive economic recovery package. Early indications, including the President-elect’s post-election statements and his cabinet-level appointments, suggest that “green jobs” and “green infrastructure” are likely to play a prominent role in Mr. Obama’s efforts to restart the U.S. economy, as reflected in the Presidential transition website.  A number of commentators have talked of a “Green New Deal” as the key to revitalizing our economy. They may just be right.


From 2003 through the third quarter of 2008, private U.S. investment in “clean technologies” (mostly alternative energy-related) surged, totaling about $2.5 billion in 2007 and at least $3 billion in the first three quarters of 2008. However, due primarily to the credit crunch and unavailability of project financing for capital-intensive renewables projects such as wind farms, such investment sagged substantially in the fourth quarter. Despite considerable investor interest, many renewable energy projects have been put on hold. This is bad for both the economy and the environment.

There is much that the federal -- and state -- governments can do to help stimulate investment in clean energy, using both carrots (subsidies) and sticks (regulatory mandates). On the subsidy side, government loans or loan guarantees could do much to ease the credit crunch and facilitate the financing of renewables projects. Other tools include expanding tax credits, governmental procurement of renewable energy, increased federal research and development grants for clean energy technologies, etc. Potential mandates include a federal renewable portfolio standard for electric utilities, increased auto fuel efficiency standards, stronger building and appliance efficiency standards and regulation of greenhouse gas emissions via EPA rule or cap-and trade climate change legislation. Such measures could materially improve the economics of alternative energy production and boost efficient energy use.

Governmental and private sector investment in renewable energy and other “clean technologies – including wind, solar, geothermal and tidal power; advanced biofuels, “smart-grid” development, equipment efficiency, energy storage, green buildings, electric cars and “clean coal” technology – can do much to reinvigorate our economy, increase our energy security and reduce our greenhouse gas emissions. Such investment can also help to jump-start American innovation and entrepreneurship, reinvent our declining manufacturing sector, and improve our balance of payments through reduced oil imports and clean technology exports. Moreover, policies that promote sustainable energy production and consumption can help create a shared sense of national purpose to which everyone can contribute.

So can clean energy save America? We may soon get a chance to find out.

What to Watch in 2009: Carbon Credits Are a Hot "Commodity"

Posted on December 16, 2008 by Michèle Corash

2009 promises a fascinating year, in which carbon emissions – the newest environmental commodity – will continue to influence both world markets and world politics. The performance of the carbon market, and the emergence of new regulatory schemes to cap carbon, particularly in the U.S., is sure to be closely watched by many politicians, environmentalists, and players in the burgeoning carbon trading industry. While the carbon market’s outlook is healthy, how the U.S. enters it – whether it can find the political will for a national cap-and-trade system, and ensure that carbon emissions receive favorable domestic tax treatment – could mean the difference between the limelight or a bit part for the global carbon show.


Carbon emissions markets: strong value, strong growth


Despite the global economic tumult, recent reports by carbon market watchers such as New Carbon Finance[1] predict that the total value of carbon market trades will reach $116 billion by the end of 2008. This reflects a rise in both the volume of carbon emissions transacted (expected to grow 31% in 2008), and the value of carbon emission credits (projected to rise by 80% this year). What’s more, the carbon market compares well to other commodity markets: private investments in carbon funds represented 3.2% of all private commodity investments at the end of 2007.


The continued growth in value is linked to high prices for the two basic types of carbon commodities: European Union Allowances (EUAs), and Certified Emission Reductions (CERs). EUAs are the basic carbon emission unit currently traded in the European Union’s Emissions Trading System (EU ETS). EUAs account for 79% of all carbon trades, and their value has averaged $34 per ton through 2008.[2] For their part, CER trades represent 17% of the transacted value in the carbon market through October 2008.   


Momentum building in the United States for federal cap and trade


The widely anticipated initiation of a federal cap and trade system in the U.S., as has been openly called for by the incoming Obama administration, as well as many business and industry leaders, is expected to increase the volume and value of the carbon market exponentially. With the entry of the U.S., the global market could top $3 trillion by 2020. The strength of cap-and-trade, though, lies in its design, and the features built into a U.S. program in the coming months will be driven as much by recession-era politics as by tested economics and sound science.


Nevertheless, Obama’s environmental appointments are already writing “cap and trade” on the wall. Lisa Jackson, picked by President-elect Obama to head the Environmental Protection Agency, is board vice-president of the Regional Greenhouse Gas Initiative,[3] a consortium of ten states whose mandatory cap and trade system will hold its second allowances auction[4] on December 17, 2008. Within the White House itself, Carol Browner, an advocate of regulating carbon emissions who headed the EPA during the Clinton administration, is returning to a top federal environmental job with her appointment as Obama’s “climate czar.” 


Meanwhile, it may be up to Steven Chu,[5] Nobel prize-winning director of the Lawrence Berkeley National Laboratory and energy secretary nominee, to build bridges between climate scientists and those (including a sizable minority of members of Congress) who still believe that climate change is mostly a theory. Chu is being hailed[6] as a scientist, rather than a political appointee, in a position that could deeply affect the U.S.’s transition to a less carbon-intensive economy. Chu may use his position to subsidize more practically-applicable research into alternative energy forms. But at least as important will be his role in the politics of addressing climate change, where skepticism, fear of adverse economic impacts, and firmly rooted consumption habits are major challenges.


Where there is potential for profit, there is also potential for taxes


Without a carbon cap and trade program in place, questions still revolve around the nature of this new “commodity” and how it will be treated under the law. Considering the only certainties are death and taxes, it is safe to assume that even carbon credits will receive a visit from the tax man. So far, no statutory provisions or IRS authority have yet issued on the federal income tax treatment of the carbon credits. Gain or loss from the sale of the carbon credits, and amounts spent to acquire the carbon credits, is as yet undefined for federal income tax purposes.

Some predictions are possible, though. Under the sulfur dioxide emissions trading program[7] of the 1990 Clean Air Act, the IRS ruled[8] that the allocation of sulfur dioxide emissions credits do not result in gross income to electric utilities when issued. More recently, the IRS addressed the federal income tax treatment of gain from the sale of excess foreign carbon credits granted under the EU ETS. A June 2008 ruling held that because they were intangible property used in the foreign corporation's trade or business, gain from the sale of surplus carbon credits did not constitute “foreign personal holding company income” for purposes of the “controlled foreign corporation” rules of the Internal Revenue Code [9].  Apart from the caveat that the features of a federal program in the U.S. may differ from the EU ETS, this strongly suggests that carbon credits under a cap and trade program may be treated as intangible assets, giving rise to capital gain or loss rather than ordinary income or loss. If the projected trillion dollar market is realized, then the potential tax revenue will be, needless to say, worth watching.

With the specter of a multi-trillion dollar market, an ideological reversal in Washington, and the expiration of the Kyoto Protocol on the horizon, this new carbon commodity inevitably will become ensnared in the continuing debates over economic recovery. Regardless of the science, greenhouse gases will undoubtedly have an impact on 2009. 


This article was written by William Sloan and Rachel Peterson of Morrison & Foerster LLP's Cleantech practice group.


[1] Research by New Carbon Finance, at

[2] One EUA represents one ton of carbon dioxide-equivalent emissions; each of the 12,000 facilities that fall within the cap and trade system has been assigned an emissions cap, and must submit that number of allowances by the end of 2012. At the market’s most basic level, facilities whose emissions exceed the cap are trying to buy EUAs, and those whose emissions fall below it have EUAs to sell.

[8] Revenue Ruling 92-16, 1992-1 C.B. 13; see also Revenue Procedure 92-91, 1992-2 C.B. 503.

[9] Private Letter Ruling 200825009 (June 20, 2008).



Posted on December 5, 2008 by Linda Bullen

Despite some early skepticism, the concept that carbon dioxide and other greenhouse gases contribute to global warming is now a widespread, if not universally accepted, belief. This link was acknowledged by the U.S. Supreme Court in Massachusetts v. Environmental Protection Agency, 127 S.Ct. 1438, 1446 (2007). With the recognition of this relationship has come an increased awareness of the role that traditional energy production facilities have played in global warming, which, in turn, has resulted in an increased interest in the development of renewable energy. 


            Renewable energy is energy which, by definition, is naturally replenished. The most commonly recognized forms of renewable energy are sunlight, wind, geothermal, water and biofuel/biomass sources. While lawmakers throughout the U.S. have passed legislation requiring that a percentage of electricity must be derived from renewable resources, the state of Nevada has been a leader in mandating that renewable energy be a made a significant part of electric provider's portfolios. In 1997, Nevada’s legislature passed into law in the state’s first “Renewable Portfolio Standard” which required that electric providers in the state acquire renewable electric generation or purchase renewable energy credits so that each utility had 1 percent of total consumption in renewables. In 2001, the standard was modified to require that, by the year 2013, 15 percent of electricity be derived from renewables.


            While renewable energy facilities are generally environmentally preferable to their fossil-fuel counterparts, they are not without their impacts to both the human and natural environments. For example, renewable energy sources are often less concentrated than fossil fuels, thereby requiring a significantly larger geographic footprint for renewable energy facilities. In addition, certain types of renewables have significant visual impact, and some renewable projects utilize other, sometimes precious, resources such as water.


            These impacts are, in the case of most large scale electrical generation projects, analyzed in the course of the environmental review process mandated by the National Environmental Policy Act (“NEPA”). NEPA requires not only analysis of the environmental impacts of proposed projects when such projects have a federal nexus and are deemed to have a significant impact on the environment, but also requires mitigation of such impacts or rejection of projects where the environmental impact is significant and cannot be adequately mitigated. 


            Development of renewable energy projects requires careful examination of science, law and public policy to ensure compliance with all applicable legal requirements and protection of the environment. The process is lengthy, costly, and at times contentious, but each completed project brings us closer to meeting the nation's energy needs without contributing to global warming.

EMERGING CLIMATE CHANGE ISSUES: Impacts on Disclosure Obligations of U.S. Public Companies

Posted on November 14, 2008 by Patricia Barmeyer

 Public companies are feeling pressure to make disclosure of the risks posed by climate change. The SEC has to date declined to issue any climate change-specific guidance, but existing SEC regulations are broad enough to require disclosure, if the information would be important to the “reasonable investor.” Investors and shareholders are increasingly vocal about their desire to have that information.

            In the absence of SEC action, New York Attorney General Cuomo has used state law to obtain settlements from Xcel Energy and Dynegy that require specific disclosures regarding the financial risks from probable climate change regulation and from the physical impacts of climate change. Even more significant is the pressure coming from major purchasers. Wal-Mart, for example, is requiring all its suppliers to report on their GHG emissions and their strategies to reduce their carbon footprints. 

            The timing, scope and details of the anticipated national program to regulate GHG emissions are still unknown, making it difficult to predict the risks and implications of climate change and its regulation for any individual company, However, even in the face of these uncertainties, disclosure is increasingly the norm, rather than the exception. All public companies need to be analyzing the risks posed by climate change and, depending on the business, should be considering disclosure of those risks in their public filings.

To read the article in its entirety, please click here.


Posted on November 10, 2008 by Larry Ausherman

It has been a long time since an environmental issue attracted some serious attention in a presidential campaign. This is the year, and climate change is the issue. From his campaign to his election night reference to a "planet in peril", President-Elect Obama has focused on climate change. There are a few other environmental issues to watch as well.


Climate Change

            The issue of climate change overshadowed other environmental issues in this election, in part because it is directly linked to other high priorities of the new administration. Goals of creating 5 million green-collar jobs and a focus on renewable energy and energy conservation enlarge the profile of climate change initiatives. For example, on the Obama-Biden website, the topics of environment and energy are grouped together as one, and the initiatives of each are related. 


            Green house gases reduction is an important goal for President-Elect Obama. The goal to reduce greenhouse gases has many parts, but imposing an economy-wide cap and trade system is the centerpiece of the policy. The plan would require that all credits be purchased at auction by industry. Costs to purchase credits could be enormous.


            In addition to domestic commitments to climate change initiatives, Obama supports "re-engaging" with the United Nations and the creation of a Global Energy Forum that includes the G8+5 Nations . The initial steps of his international policy may come soon when Obama's representatives will likely visit the climate change talks in Poznan, Poland this December.


            The broadening Democratic majority in Congress favors Obama's climate change agenda. In addition to Democratic gains in the House and the Senate, the League of Conservation Voters reports that seven of its 2008 "dirty dozen" legislators were defeated in the 2008 election. Among environmental groups, hopes are high for the new presidency.


            But because Obama's objectives require heavy investment in renewable energy, regulatory compliance, and clean technology, they face difficult hurdles. High deficits and the global financial crisis challenge the ability of the federal government to spend, the capacity of private markets to invest, and the resilience of the U.S. economy and industry to weather increased costs of regulation. Great investment would be required for meeting goals for clean coal technology, biofuel development, renewable energy, and energy efficiency.


Other Environmental Issues

            Here are some of the other environmental issues to watch.


            CERCLA issues have not received great attention so far. However, Obama has suggested reinstitution of the tax on industry to pay for orphaned sites and has emphasized the concept of "polluter pays".


            For many years, changes to the General Mining Law of 1872 to impose royalty and/or additional regulation have been proposed and defeated. Although mining law reform has not been a significant part of the presidential campaign, the chances for its passage in the more Democratic congress has increased.


            Obama's past opposition to offshore drilling weakened a bit this year in the Senate as a result of a compromised effort. Obama would support offshore exploration in areas already set aside for it, but his opposition to ANWAR remains firm.


            It is unclear what priority the Obama administration will place on biodiversity and the Endangered Species Act. Biodiversity has received little attention in the campaign, but the campaign has opposed lessening of ESA consultation requirements.

First Regional Greenhouse Gas Initiative Auction Results: Massachusetts Gets $13.3 Million

Posted on September 30, 2008 by Seth Jaffe

The operators of the Regional Greenhouse Gas Initiative, or RGGI Inc., announced yesterday that all of the 12,565,387 CO2 allowances offered for sale in the first RGGI auction on September 25, 2008 were purchased at $3.07 per allowance. This is above the auction reserve price of $1.86 per allowance, and below recent prices on the Chicago Climate Futures Exchange. See RGGI Inc.'s press release here.

RGGI did not announce the names of the winning bidders, but noted that there were 59 participants in the auction, all from the "energy, financial and environmental sectors." In total, the bidders sought to purchase more than 51 million allowances, or approximately four times as many as were offered. The auction was administered by World Energy Solutions, Inc., and RGGI also retained an independent market monitor, Potomac Economics, to oversee the auction. Potomac Economics stated that most of the allowances were purchased by "compliance entities or their affiliates." See the Potomac Economics release here.

Massachusetts' share of the RGGI allowance proceeds came to approximately $13.3 million. In a press release issued yesterday, Governor Patrick confirmed the commitment in the Green Communities Act to use the RGGI funds for energy efficiency programs that will help individuals and municipalities address energy challenges.

Specifically, the $13.3 million in proceeds from the first auction will be allocated in the following ways:

  • $3.5 million for utility-administered energy efficiency programs, primarily funding the DPU's $7 million program to work with electric and natural gas utilities to expand their consumer energy efficiency programs
  • $5 million for start-up of the Green Communities Program, created by the Green Communities Act
  • $4.3 million for additional energy efficiency efforts this winter, subject to the report of the Winter Energy Costs Task Force which is due in early October
  • $500,000 for administrative and vendor costs associated with Massachusetts' participation in RGGI and the allowance auctions

The next auction is currently scheduled to be held on December 17, 2008.

Offshore Wind Farm in the Mid-Atlantic - Will Delaware Be the First State of Offshore Wind?

Posted on September 29, 2008 by Robert Whetzel

The nation’s first offshore wind farm may soon be built off the coast of Delaware. Although climate change and clean energy issues were part of the debate over this project, the Delaware wind farm project finds its origins in energy reliability and price stability legislation. 

In 2006, consumer energy prices in Delaware increased dramatically, following the State’s deregulation of electricity generation. As part of the deregulation process, a three year freeze had been placed on energy rate increases in Delaware. When the freeze expired, energy prices across the United States were spiraling upward and rates in Delaware were adjusted to market prices. The result was a significant increase in consumer electricity prices, with the attendant public outcry and legislative demand for reform.


 In an attempt to stabilize prices, the Delaware General Assembly enacted the Electric Utility Retail Customer Supply Act of 2006. The Act established a bidding process for long-term purchase power agreements, and directed Delmarva Power & Light Company (“Delmarva Power”), the State’s largest electricity service territory provider, to solicit bids for such an agreement. The legislation also mandated an integrated resource planning process in order to ensure the availability of sufficient and reliable resources over time to meet customers' needs at a minimal cost. 


The Delaware legislation required Delmarva Power to issue a request for proposals ("RFP") for the construction of new generation resources within Delaware along with a proposed output contract for a term of no less than 10 years and no more than 25 years. The Delaware Public Service Commission (the “PSC”) and the Delaware Energy Office were tasked with ensuring that the RFP elicited and recognized the value of proposals that: (a) utilized new or innovative baseload technologies; (b) provided long-term environmental benefits to the state; (c) had existing fuel and transmission infrastructure; (d) promoted fuel diversity; (e) supported or improved reliability; and (f) utilized existing brownfield or industrial sites. The PSC, the Director of the Office of Management and Budget, the Controller General, and the Energy Office (the "State Agencies") were tasked with evaluating the bids and determining whether to approve one or more of them. 

Three bids were submitted in response to the RFP: one for an offshore wind farm, one for a combined cycle gas turbine, and one for a coal-fired integrated gasification combined cycle ("IGCC") unit. After evaluation of the bids, both Delmarva Power and an independent consultant concluded that none of the bids met the evaluation criteria because, among other things, each of them proposed prices that were projected to be above market when the new generation facilities went on-line. The State Agencies, however, fashioned a hybrid energy supply approach, and directed Delmarva Power to negotiate for a long-term agreement for wind power with Bluewater Wind, LLC (“Bluewater”) and, concurrently, for an agreement with another generator to provide back-up power. These negotiations were to take place under the oversight of an independent third-party, who would be responsible for reporting to the State Agencies on the parties’ efforts to negotiate the agreements. 

Delmarva Power and the bidders were unable to negotiate concurrent agreements for the wind farm and the “backup” generation source. The State Agencies next directed Delmarva Power and Bluewater to negotiate a final agreement for the wind farm. When the deadline for a this agreement was reached in December 2007, the parties had not agreed upon many important terms, relating to the capacity, price, and risk for the project. After reviewing the status of negotiations, the PSC staff recommended approval of the proposed terms with the condition that the cost of the wind farm be spread over all of Delmarva Power’s customer base. The PSC staff also recommended that legislation be pursued that allocated the costs of the wind farm across all energy consumers in Delaware. At that point, the State Agencies tabled the matter because there was not a consensus to approve the agreement. 

The Delaware legislature then became involved in considering the wind farm power agreement, and conducted legislative hearings regarding the agreement and alternative energy technology and market trends. A legislative committee ultimately concluded that, while wind generation should be a significant component of the State’s electricity supply portfolio, Delaware citizens should not assume the large risk or pay the large premium contemplated in the (then) proposed wind farm agreement. This conclusion was not without opposition in the legislature.

During May and June, 2008, renewed negotiations took place between Delmarva Power and Bluewater, under the ever-present threat of further regulatory or legislative action. Ultimately an agreement was reached for the purchase of power and renewable energy credits (“RECs”) from the wind farm by Delmarva Power. This agreement coincided with legislation in the State that enabled the cost of the wind farm to be spread across all of Delmarva Power’s customer base, not just residential consumers and small businesses, and that substantially increased the value attached to the RECs for the wind farm. Under the agreement, Delmarva Power will purchase energy from the wind farm equal to the amount generated by a 200 MW nameplate facility (approximately 50 percent less than in the proposed December 2007 agreement.) The wind farm, however, may produce three times this capacity (i.e., up to 600 MW), and may secure additional customers for its power. The final agreement also provides termination rights to Bluewater, including termination based upon the content of final regulations to be promulgated by the Department of the Interior with respect to the permitting and siting of offshore wind farms. 

The Department of the Interior proposed regulations on July 9, 2008, and comments were due by September 8, 2008. The American Wind Energy Association, of which Bluewater is a member, submitted comments arguing against a provision that would require developers to pay 2 percent of their operating revenue to the government. Bluewater has stated that such a provision will not be a “deal killer” for the Delaware project, but has also recognized as problematic the impending expiration of federal renewable energy subsidies.


Posted on July 22, 2008 by Rick Glick

On July 15, EPA announced new rules for underground injection of carbon dioxide (CO2). The rules are intended to provide a measure of regulatory certainty for carbon capture and storage (CCS) implementation.  CO2  STORAGE RULES. CCS is the technology for capturing CO2 as it is released from coal-fired power plants, oil refineries or other large scale sources of CO2 emissions, and then transporting the gas for injection into a suitable underground geologic formation. EPA estimates that CCS could account for as much as 30% of CO2 emissions by 2050, which has obvious implications for climate change.


Under the Safe Drinking Water Act, EPA administers the Underground Injection Control (UIC) program. The program is designed to protect drinking water aquifers from industrial injection of fluids into deep geologic formations for purposes such as enhanced oil or gas recovery. CO2  storage presents special challenges as it is buoyant, can be corrosive and would be spread over a large area and held indefinitely. Therefore, EPA proposes a new Class VI well specific to storage. 


EPA proposes performance-based standards, as opposed to prescriptive requirements. In general, an injection and operations plan must be included with the application that demonstrates drinking water would be protected. Permit holder would have to monitor and periodically report back to EPA to ensure that model predictions as to the size of the CO2  plume and injection pressures prove true. Permittees would be required to demonstrate financial responsibility for post-injection site care for 50 years; that time period could be shorter or longer, depending on the residual risk to drinking water aquifers based on monitoring data.


Note that the rules do not address the capture and transportation of CO2. Further, the new rules do not address property rights, liability or other siting regulatory concerns, so we can expect the states to assert jurisdiction. 

For more information, see full article here.

Climate and the Courts

Posted on February 4, 2008 by Lee A. DeHihns, III

The Supreme Court ruled last term that climate change can be regulated under federal law. But will the continuing lack of action by Congress, the En­vironmental Protection Agency, and most states be replaced by new litiga­tion by activist states and public inter­est organizations against government agencies and private parties? Is this an area where litigation will, or alternatively should, fill a void left by meaningful government activity? When EPA separately receives a record-breaking 100,000 comment letters on the request by California to waive the Clean Air Act’s barrier to state regulation of greenhouse gases from motor vehicles, one realizes that the public’s demand for concrete action is urgent. A legitimate fear, how­ever, is that these petitions and lawsuits could produce a patch­work response to global warm­ing where a comprehensive na­tional strategy is called for.


Without federal legislation setting out a clear and compre­hensive policy on GHGs, what is certain is that court cases to address alleged damages from global warming emissions will continue under authorities liti­gants claim are in the CAA or under public nuisance and oth­er common law torts. Whether seeking federal statutory pre­emption of state action or af­firmation that the claimants’ is­sues are non-justiciable political questions, cases that would bar some of those assertions are now squarely before two federal appeals courts. The stakes in those cases — which I expect will go to the Supreme Court — are high. At issue are the responsibilities and rights of both the federal government and the states in en­vironmental policymaking as well as the role that courts play in resolving the special issues, such as causation, injury, and standing, raised by global warming.

The Supreme Court’s holding in Massachusetts v. EPA, decided April 2, 2007, has already had a tre­mendous impact on climate change policy develop­ment and litigation in the United States. In Massa­chusetts, 13 states, 3 cities, 13 environmental orga­nizations, and American Samoa asked for review of EPA’s denial of a petition for rulemaking to regulate GHGs — in this case four specific gases, including carbon dioxide — from new motor vehicles under Section 202(a)(1) of the CAA. That section requires that EPA “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the administrator’s] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.” The act defines air pollutant to include any physical or chemical substance emitted into the ambient air.

EPA’s denial of the petition reasoned that the CAA does not authorize it to issue mandatory regu­lations to address GHGs, especially when, as argued by the federal government, there is no science firmly linking emissions with an increase in global surface air temperatures. From a political perspective, EPA also reasoned that regulating new motor vehicles would conflict with President Bush’s comprehensive, voluntary strategy and undermine his ability to conduct foreign policy with developing countries over their emissions. EPA’s denial was not without sup­port: 10 states and 6 trade associations filed briefs against the petition.

Although the agency claimed that Massachusetts had failed to demonstrate an injury that could be tied to GHG emissions, the Court found that the state had standing to pursue review of EPA’s denial of its petition. The Court held that carbon dioxide and other GHG emissions do meet the definition of air pollutant under the CAA. The Court next held that the CAA requires EPA to regulate GHGs from new motor vehicles if it forms a judgment that such emissions under Section 202(a) “may reasonably be anticipated to endanger public health or welfare.” Welfare under the CAA includes effects on climate. EPA can only avoid regulatory action if it is appar­ent that GHGs from new motor vehicles do not contribute to climate change. Because of the Court’s linking of GHGs with the definition of air pollutant under the CAA, future litigation and other actions to reduce emissions will be strengthened.

In reaction to Massachusetts, and the lack of any decisions on GHG regulation by the agency since the decision last April, there are a variety of efforts underway to force EPA or other federal agencies to formulate a national approach to GHG regulation. Unfortunately, such an approach has to be taken up piecemeal since there is no single authority in the Clean Air Act that is a logical target. As a result, U.S. climate policy could become a crazy-quilt of differing standards and regulations across the country.

More Unanswered Petitions

In a lawsuit pending while Massachusetts’s petition for a rulemaking was on its journey, on September 12, 2007, another New England state received a favorable response to its separate petition to regu­late GHGs from motor vehicles in a federal trial court — although the final result will depend on the outcome from yet another state petition. In Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, a case brought by a group of car dealers, manufacturers, and their associations, a U.S. district court found that the state of Vermont’s regulations adopting California’s GHG standards for new automobiles were not pre­empted by either the CAA or the Energy Policy and Conservation Act of 1975, as amended. EPCA autho­rizes the Department of Transportation to set mileage standards for new cars and light trucks.

Section 202 of the CAA, the object of Massachusetts, requires the agency to establish standards for air pol­lutants emitted by new motor vehicles. Section 209(a) preempts a state from adopting its own motor vehicle emission standards, while Section 209(b) requires EPA to waive the preemption barrier for standards that meet certain conditions. The most important condition, of course, is that the state adopt the same regulations as California, which because it suffers from the worst air pollution in the country and was already legislating emissions reductions before the national government can receive a waiver to adopt standards stricter than federal regulations. Other states may adopt California standards for which a waiver has been granted if they do so at least two years before commencement of a new automotive model year.

California adopted GHG standards for new vehi­cles to begin in model year 2009, and asked EPA for a waiver of federal preemption in 2005, the same year as Vermont enacted its standards. It is this request that en­gendered the 100,000 comment letters, the most ever received on any regulatory petition. The federal agency is expected to act on California’s waiver request after it reviews the letters. However, California has decided not to wait on EPA to act on its request. On November 5, 2007, the state sued the agency in federal court to compel it to act on the petition. California Attorney General Edmund G. Brown Jr. said, “We have waited two years and the Supreme Court has ruled in our fa­vor. What is the EPA waiting for?” California pointed particularly to the fact that 16 other states have adopt­ed California standards or will do so soon. The ruling in Green Mountain Chrysler Plymouth allows Vermont’s petition to go forward, where it will have to await EPA’s decision on the California petition.

The Green Mountain decision draws support from Massachusetts, because the Supreme Court commented that despite the overlap between EPCA and the CAA, EPA must act to carry out its obligations without re­gard to what DOT does under EPCA. The Supreme Court held that “EPA has been charged with protect­ing the public’s health and welfare . . . a statutory obli­gation wholly independent of DOT’s mandate to pro­mote energy efficiency.” While recognizing that those emissions contribute to global warming, the district court recognized that Vermont’s attempt to regulate GHGs from cars is part of its comprehensive strategy to reduce GHG emissions statewide. Vermont is un­dertaking its motor vehicle program and other actions through its participation in the Regional Greenhouse Gas Initiative, an agreement among nine northeastern and mid-Atlantic states to adopt a regional cap-and-trade program for GHGs associated with large station­ary sources such as power plants.

One other interesting issue raised in the Vermont case is the allegation that the state’s regulations intrude upon the foreign affairs prerogatives of the president and the Congress and that they interfere with U.S. pursuit of international agreements to reduce GHGs. Again relying on Massachusetts, the district court said that the Supreme Court had dismissed EPA’s similar contention that regulating GHGs under the CAA might impair the president’s ability to negotiate with developing nations to reduce greenhouse gas emis­sions. Based on the evidence before it, the district court concluded that there was no demonstration that Ver­mont’s regulations would have a recognizable intrusion in the field of foreign affairs. The district court weighed the burden that the automotive industry bears to show that the Vermont regulations are beyond its ability to meet, and concluded that “the court remains uncon­vinced automakers cannot meet the challenges of Ver­mont and California’s greenhouse gas regulations.”

Staying in the world of motor vehicle emissions, on November 15, 2007, the Ninth Circuit reversed and remanded NHTSA’s corporate average fuel economy standards for light trucks for model years 2008–2011 issued under EPCA in Center for Biological Diversity v. National Highway Traffic Safety Administration. The standards were challenged by 11 states, the District of Columbia, the city of New York, and four public inter­est organizations. Emissions from light trucks make up about 8 percent of annual U.S. greenhouse gas emis­sions. NHTSA claimed it weighed all of the benefits of improved fuel savings, concluding that “there is no compelling evidence that the unmonetized benefits would alter our assessment of the level of the standard for [model year] 2011.” The appeals court found that NHTSA “assigned no value to the most significant benefit of more stringent CAFE standards: reduction in carbon emissions” and thus will have to promulgate new CAFE standards that take GHGs into account.

In yet another petition to EPA, on October 2, 2007, California Attorney General Brown joined three national environmental organizations in asking the agency to adopt strict regulations for GHGs from ocean-going vessels under the CAA — “and to begin the process immediately.” Brown said that ocean-going vessels emit more CO2 emissions than any nation in the world except for the United States, Russia, China, Japan, India, and Germany. The petition asserts that ocean-going vessels over 100 tons are estimated to emit up to 3 percent of the total world inventory of GHGs, while by comparison in Massachusetts v. EPA the Court found that the contribution of the U.S. transportation sector to the worldwide GHG total is about 6 percent. California asserts that such a large sectoral contribution to global warming is “vital to regulate.”

California has also turned to litigation and legisla­tion. Its case against the automobile manufacturers un­der federal common law and state law was dismissed on September 18 when the district court refused to entertain the federal common law claim, ruling that it comprises a nonjusticiable political issue, and then re­fused to exercise supplemental jurisdiction under state law. But the state is moving on its own: On September 27, 2007, Governor Arnold Schwarzenegger signed a bill that establishes a comprehensive program of regu­latory and market mechanisms to achieve GHG re­ductions.

The Question of Political Questions

Another issue facing current and future liti­gants concerns a political question, as decid­ed by the Southern District of New York in Connecticut v. American Electric Power Com pany. In that case, Connecticut and seven other states, the city of New York, and environmen­tal groups sued a number of electric utilities, includ­ing American Electric Power Company, the Southern Company, TVA, Xcel Energy, and Cinergy Corpora­tion under federal common law to abate the public nuisance of global warming. The complaint alleged that the defendants were the five largest emitters of car­bon dioxide in the United States, constituting approxi­mately one fourth of the electric power sector’s carbon dioxide emissions, and that U.S. electric power plants are responsible for 10 percent of worldwide carbon di­oxide emissions from human activities.

As in the California suit against the automakers, the court held that filing nuisance suits against utilities to abate emissions that allegedly contribute to global warming raises non-justiciable political questions that are beyond the limits of a court’s jurisdiction. The court concluded that “the scope and magnitude of the relief plaintiff’s seek reveals a transcendentally legislative na­ture of this litigation. Plaintiff asks this court to cap carbon dioxide emissions and mandate annual reduc­tions of an as-yet-unspecified percentage.” The court found that a case is “justiciable in light of the separa­tion of powers ordained by the Constitution only if the duty asserted can be judicially identified and its breach judicially determined and protection for the right ju­dicially molded.” The district court then went through an analysis of the six situations recognized as indicating the existence of a non-justiciable political question, cit­ing two U.S. Supreme Court cases, Baker v. Carr, de­cided in 1962, and Vieth v. Jubelirer, decided in 2004.

Among the factors in the Vieth v. Jubelirer case, which concerned gerrymandering, is whether a court faces “the impossibility of deciding [the case] without an initial policy determination of a kind clearly for nonjudicial discretion.” In Connecticut, the district court was honestly puzzled. It struggled with a variety of policy determinations concerning whether the cost of GHGs would be borne just by the defendants, the entire electricity generating industry, or all industries. It also struggled with the economic implications of making these choices, not to mention the effect on the country’s energy policy. In the end, the court conclud­ed it is the judicial branch that decides when a political question is raised, but “looking at the past and current actions (and deliberate inactions) of Congress and the executive within the United States and globally in re­sponse to the issue of climate change merely reinforces my opinion that the questions raised by plaintiffs’ complaints are non-justiciable political questions.” The decision was appealed to the U.S. Court of Appeals for the Second Circuit. Oral argument on appeal was held before the Massachusetts decision and although the Sec­ond Circuit sought additional briefing in light of the decision, it has not yet ruled in the case.

Another court decision that addressed the non-jus­ticiable political question issue is Comer, et al. v. Mur­phy Oil USA Inc., et al., decided last August by the U.S. District Court for the Southern District of Mississippi. This case, brought in the aftermath of Hurricane Ka­trina, was a putative class action on behalf of Mississip­pi citizens against defendants which included named oil company defendants (plus an additional 100 oil companies licensed to do business in Mississippi), in­surance firms, utilities, and chemical companies. The allegation was that these businesses emit GHGs, which changed the environment so as to cause more frequent and intense hurricanes over the past 30 years, result­ing in, among other things, Hurricane Katrina and the damages suffered by the plaintiffs.

Interestingly the plaintiffs did not ask the court to regulate global warming or change national global warming policy, but instead they sought damages for direct action by the defendants in contributing to the cause of Hurricane Katrina. The plaintiffs, similarly to those in the Connecticut v. American Electric Power Company case, said in a class action complaint, “To the extent that this complaint raises political issues, those issues are subordinate to the plaintiffs’ physical and monetary damages. Furthermore, although global warming causes tremendous damage to the environ­ment, public health, and public and private property every year, there is a dearth of meaningful political ac­tion in the United States to address global warming problems. Thus, to the extent that the political process has failed to provide people harmed by global warm­ing with means to recover for their injuries, the courts must execute their constitutional mandate embodied in Article III of the U.S. Constitution.”

Motions to dismiss were filed in the case, following arguments, similar to those made in Connecticut, that the case presented a non-justiciable political question and must be dismissed. In an opinion that received little notice, the district court found that the plaintiffs did not have standing to assert claims against any of the defendants and that their claims were nonjudiciable pursuant to the political question doctrine. An appeal has been docketed with the U.S. Court of Appeals for the Fifth Circuit.

The Special Standing of States

Another issue that has not been developed further since Massachusetts v. EPA is stand­ing to challenge government GHG inaction. As a backdrop to its decision, the Supreme Court was careful to explain that it was de­ciding whether GHGs should be regulated based on the wording of the CAA. The justices explained that “Article III of the Constitution limits federal court ju­risdiction to cases and controversies.” In other words, federal courts address “questions presented in an adver­sary context . . . capable of resolution through the judi­cial process.” The justices were also clear that “no justi­ciable controversy exists when parties seek adjudication of a political question.” In the Court’s view, “While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and per­sonal way. This requirement is not just an empty for­mality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the out­come, and that the legal questions presented . . . will be resolved, not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”

The Supreme Court took an additional step in rec­ognizing that the state of Massachusetts had a special position in the case. The Court said that “when a state enters the union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Is­land to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emis­sions might well be preempted.” The Court stated that EPA had an obligation to protect all U.S. citi­zens under the CAA and the agency’s refusal to act presented a risk that Massachusetts had to sue to protect. The Court found that “the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.”

The standing conclusion in Massachusetts needs to be used carefully in future cases due to the strong dissent written by Chief Justice John Roberts, who argues that the granting of special standing to a state has no precedent. He worries that the Article III stand­ing threshold has been lowered for all future litigants: “The good news is that the Court’s ‘special solicitude’ for Massachusetts limits the future applicability of the diluted standing requirements applied in this case. The bad news is that the Court’s self-professed relax­ation of those Article III requirements has caused us to transgress ‘the proper-and-properly limited-role of the courts in a democratic society.’ ”

Is Climate Change Material?

A final outgrowth of Massachusetts takes a completely different tack in reducing GHGs. Buoyed by the removal of barriers to EPA regulation of climate change, on September 18, 2007, a coalition of share­holders, environmental groups, and state officials filed a petition with the Securities and Exchange Commis­sion requesting that it issue an interpretive release clari­fying that material climate-related information must be included in corporate disclosures under existing law. The petition is notable because it calls for disclosures beyond the types of generic climate impacts that have been the subject of disclosures in the past and it alleges that the voluntary disclosures to date are insufficient. The petition seeks evaluation of the risks in three cat­egories: physical risk, financial risk, and legal proceed­ings. In citing Massachusetts v. EPA and pending federal legislation, the petition makes as its central point that “the transition to a carbon-constrained economy is underway, and public access to material information concerning the risks and opportunities that companies face, and their means of addressing those risks and op­portunities, is vital to investors.”

All of the efforts described in this article, some in and some out of courts, tell us that a chaotic path lies ahead for those seeking satisfactory solutions to global climate change. •


Lee A. DeHihns III, is the Chair of the American Bar Association’s Section of Environment, Energy and Resources for the 2007–2008 term, is a Partner in the Environmental and Land Use Group at Alston+Bird LLP in Atlanta, Georgia.

*This article originally appeared in The Environmental Forum January/February 2008 issue. For information regarding the Environmental Law Institute please visit their website at

Wind Power Project Permitting: Demonstrating a Need for Clean Power and Evaluating the Economic and Wildlife Impacts of Wind Farms

Posted on November 30, 2007 by Jeff Thaler


Total Bird Fatalities


60-80 million

Buildings and windows

98-980 million

Power lines

10,000 – 174 million

Communications Towers

4-50 million

Agricultural Pesticides

67 million


100 million

Wind Generation Facilities

10,000 – 40,000

There have been few studies on bat mortality. Most have focused on Virginia and West Virginia where there are more caves as well as largely deciduous forest habitats. Outside of a study at Searsburg, Vermont (P. Kerlinger 2002), which failed to document any bird or bat mortality, there are currently no published studies of bat mortality for wind power facilities in New England. For facilities located on temperate forest ridges in the Southeast and Mid-Atlantic, fatality rates range from 15.3 to 41.1 bats per megawatt (MW) of installed power, per year.[16]    Bat fatalities appeared to be greater at turbines nearer to wetlands (Jain et al 2007). Wind turbines on higher, more windy and sub-alpine ridgelines are expected to have far fewer bat fatalities.

The primary reason for very low rates of bird and bat mortality is that they migrate at altitudes wellabove the rotor-swept area. All post-2004, published (59) and unpublished (72) studies to date have consistently documented that birds and bats fly well above (i.e., 1000 to 2000 feet above) the turbine blades during migration periods.


Not only environmental lawyers, but all concerned decision-makers and citizens must confront the largest threat to our public’s environment, health, and property in decade: climate change from global warming due to greenhouse gas emissions. This century’s realities require prompt and decisive action on many fronts, only one of which is the expedited permitting and construction of clean, renewable, and indigenous sources of power for our homes and businesses. It is critical that we help advocate not only for individual projects, but also for modernized policy- and decision-making that balances traditional environmental wildlife concerns with the new threats to wildlife, forest,  coastal habitats, and our way of life. The need is urgent. The time is now.

[1] As of December 2007 there are three proposed wind farms that have received some regulatory review, totaling 243 MW. Studies suggest there is significantly more wind capacity developable in Maine, and of course many more times that across the United States.

[2]   The Task Force web site has a wealth of information, including a number of presentations, and is at:

[3] The October 30, 2007 presentation can be found at:

[4] A recent presentation by Maine DEP Commissioner David Littell summarizing wind power and its

greenhouse gas and air quality benefits is at: ttp://

[5] The general IPCC website is at:   A summary of the Synthesis Report can be found at:     

[6]   For the NECIA report see:    For the NECIA link to specific reports in individual states, go to:



[9] “Analysis: Economic Impacts of Wind Applications in Rural Communities”, National Renewable Energy Laboratory and M. Pedden

[10] Poletti and Associates, Inc. Real Estate Study




[13] Erickson, W.P. et al, “Avian Collisions with Wind Turbines”, 2001.

[14] This study, by Jain et al., can be found at:

[15] National Research Council, 2007, “Environmental Impacts of Wind Energy”, based upon Mid-Atlantic Highlands region,; also see generally Erickson et al. 2001; Klem 1991; Pimental and Acquay 1992; Coleman and Temple 1993;

[16] Kunz et al. Frontiers in Ecology and the Environment Issue 6, Vol. 5: August 2007.

[15] National Research Council, 2007, “Environmental Impacts of Wind Energy”, based upon Mid-Atlantic Highlands region,; also see generally Erickson et al. 2001; Klem 1991; Pimental and Acquay 1992; Coleman and Temple 1993;

[16] Kunz et al. Frontiers in Ecology and the Environment Issue 6, Vol. 5: August 2007.

Carbon Capture and Sequestration Issues and Debate

Posted on November 27, 2007 by Jeff Thaler

The proposed construction of a 700-megawatt coal-and-biomass-fuel power plant on the site of a former nuclear power plant in Maine has sparked a great deal of analysis into current issues and technologies associated with carbon sequestration, including but not limited to coal power plants. The Twin River Energy Center in Maine proposed an innovative technology to convert coal and wood biomass to a nearly sulfur-and particulate-free gas that would be burned to drive steam turbines, as well as to create a small amount of diesel fuel. 

            As in many parts of the country, the project proposal kindled debate about the use of America’s substantial coal resources in a time of climate change and greenhouse gas concerns.   Consequently, a large conference was recently held by the Chewonki Foundation with participation of experts from around the country, as well as Twin River representatives, to discuss carbon capture and storage technologies and opportunities. The Twin River project would have the technology to capture carbon, but no ready sequestration site nearby presently exists. 

            The general consensus from conference presentations was that (1) carbon capture and sequestration will need to play an important role in reducing carbon dioxide emissions, not only in the United States, but especially in China, India and other parts of the world; (2) at the present time, there is insufficient geological information -- both on land and below the ocean floor -- about the potential for carbon dioxide storage not only in Maine but in the Northeast in general; and (3) it is imperative that government, industry and environmental groups work together in exploring the viability of carbon sequestration. 

            Maine is a member of the Regional Greenhouse Gas Initiative (RGGI), the nation’s first carbon-and-trade program, which involves all Northeast states from Maine to Maryland, with the exception of Pennsylvania. Commencing January 1, 2009, it required reduction of pollution from the region’s largest power plants by 10% by 2019. However, while the region itself is not heavily dependent upon coal-fired generation, it is heavily dependent upon fossil-fuel generation, as well as being downwind of substantial coal-generated power to the west and south.

            During the Chewonki conference, findings were presented from the MIT Future of Coal Study; the U.S. Department of Energy presented on the priorities and challenges of carbon capture and storage; several speakers focused on technological issues of producing low-greenhouse gas liquid fuels, as well as the monitoring and site characterization for carbon storage; and a presentation was made by a Twin River consultant on the mine-to-wheels analysis of projected carbon dioxide emissions from the proposed plant. 

            A link to the carbon capture and storage presentations can be seen here.   After the presentation, local voters in Wiscasset rejected a change in the zoning ordinance concerning height of structures. The project developer is still intending to pursue the project following some refinements.

           In full disclosure, the author is lead environmental permitting attorney for the Twin River project, and his firm generally represents Twin River. For more information on the author, including contact information, please see firm website here.  

The IOGCC Issues Its Model Program For The Geologic Sequestration of CO2

Posted on November 27, 2007 by David Flannery

 On September 25, 2007, the Interstate Oil and Gas Compact Commission (IOGCC) issued its model program for the storage of carbon dioxide in geologic formations. The full text of the model program can be found here.

          OVERVIEW - Even though USEPA has announced that it will undertake the development of regulatory program for such activities under the Safe Drinking Water Act, the IOGCC model program is premised on the belief that the regulation of CO2 geological storage should be left to regulation by the states, rather than USEPA. Equally significant is the IOGCC view that the storage of CO2 in geological formations should be viewed as the storage of a commodity - not waste disposal. While the IOGCC proposes its CCS program in anticipation of a national program that would constrain the emission of CO2 to the atmosphere, the IOGCC avoids making recommendations about how CO2 should be constrained.

          PROPERTY RIGHTS - The model program provides that an applicant for any such project should acquire the property rights to use pore space in the geologic formation for storage. While much of the IOGCC’s model program addresses the need to acquire property rights through negotiation, eminent domain or unitization of oil and gas rights, the model program specifically states that the IOGCC is less concerned about what mechanism is used to acquire those rights and is more concerned that all necessary property rights be acquired by valid, subsisting and applicable state law. The IOGCC goes on to recognize that states might develop alternative mechanisms to acquire property rights, such as adapting the concept of the forced unitization of oil and gas industry rights to other property interests. An applicant must demonstrate that a good-faith effort has been made to obtain the consent of a major of owners "having property interest affected by the storage facility." The program provides for an applicant to have the power of eminent domain and provides that an applicant will be deemed to have necessary property rights to the extent that the applicant has initiated unitization or eminent domain proceedings and have thereby gained the right a of access to the property.

          COVERED FACILITIES - The definition of "storage facility", includes the reservoir, wells and related surface facilities but apparently not pipelines used to transport carbon dioxide from capture facilities to the storage and injection site. The IOGCC has stated its intent to consider over the next year, how its model program might best be expanded to include pipelines.

          LIABILITY RELEASE - Following completion of the project an operator would be obligated to monitor the project to assure its integrity. At the completion of that period, title to the facility would be transferred to the state and the operator and all generators of CO2 injected would be released for all regulatory liability and any posted performance bonds would also be released. Over the next year, the IOGCC has stated that it will consider the possibility of expanding the liability release to include common law tort liability. As part of the inducement for a state to allow liability transfer, the program establishes a trust fund which would assess a fee on each ton of CO2 injected. The trust fund provides the financial resources for the state to take title to project at the end of its operating life.

          COOPERATIVE AGREEMENTS - Cooperative agreements are authorized for use in connection with projects that extend beyond state boundaries.

          EOR PROJECTS - Enhanced Oil Recovery projects are not covered by the model program, although agencies are encouraged to develop rules on how enhanced recovery operations would be converted to carbon dioxide storage projects.

          PERMIT REQUIREMENTS - The program provides detailed requirements for completing an application for approval of a CCS project. Among other things maps accompanying a permit application would be required to identify existing oil and gas and coal mining operations. Public notice is completed upon mailing. The agency shall issue a permit to drill and operate once it has completed a review of the application. The permit would expire within twelve months from the date of issuance if the permitted well had not been drilled or converted. The program also sets forth detailed well operational standards, including requirements for safety plans, leak detection, and corrosion monitoring and prevention.

This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

Regional Governors Sign On to Progressive Climate Change Agreement

Posted on November 27, 2007 by Linda Bochert

 On November 15, 2007 the Midwest Governors Association held the Energy Security and Climate Change Summit in Milwaukee, WI. The Summit provided Midwest leaders with the opportunity to come together on an issue of global importance and sign onto the Midwestern Greenhouse Gas Reduction Accord (the Accord). Full signatories to the Accord include Wisconsin, Minnesota, Illinois, Iowa, Michigan, Kansas, and the Canadian Province of Manitoba. Indiana, Ohio, South Dakota signed on as observer states, and although Nebraska and North Dakota did not sign onto the Accord, they did adopt the accompanying Energy Security and Climate Stewardship Platform (the Platform).  

          The Accord cites the lack of national leadership on climate change issues and asserts that Midwestern States are well positioned to take a leadership role in climate change policy. Several specific goals were put forth along with an aggressive timeframe within which to accomplish them. Of particular importance will be establishing targets for GHG emission reductions and implementing a regional cap and trade program.

          The Platform provides policy options and measurable goals to help facilitate the transition to a lower-carbon energy economy. Among its top priorities are the development of widespread energy efficiency programs, utilization of bio-based products and transportation, increased development of local renewable electricity, and increased support for advanced coal technologies. 

More information about the Midwestern Governors Association, the Accord and the Platform is available online here.