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D.C. battle over EPA Administrator nomination & the future of the D.C. Circuit

10 Jun

Gina McCarthy was nominated to take over as US EPA Administrator over three months ago. Last month her nomination passed out of the Senate Environment and Public Works Committee to the full Senate for a vote. Needless to say, the leadership of EPA is a source of contention between Republicans and Democrats. As a result Republican senators have been delaying McCarthy’s confirmation vote.

Another set of less obvious nominations that may have even more significant environmental repercussions was made last week. President Obama nominated Robert Wilkins, Nina Pillard, and Patricia Millett for the US D.C. Circuit Court of Appeals. Since federal agencies are typically sued over proposed regulations in the D.C. Circuit, the D.C. Circuit is a prime battleground for US EPA regulations. In fact, these appointments may be especially important as federal judges are appointed for life, unlike agency administrators who typically last only as long as the President who nominates them, if that long. The judges whose change to Senior Status in the Court of Appeals created two of the three vacancies served for 25 and 26 years. The third vacancy was created when John Roberts was elevated to the Supreme Court. Currently, the D.C. Circuit has four judges selected by Republic Presidents (three judges selected by George W. Bush and one by George H.W. Bush and four judges selected by Democratic Presidents (three by Bill Clinton and one by Barack Obama).

If you have questions about these appointments or how to make your voice heard, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

How are greenhouse gas emissions from stationary sources regulated under the Clean Air Act?

10 Apr

Whenever someone asks why greenhouse gases are regulated under the Clean Air Act the automatic answer is “because the Supreme Court said so in Massachusetts v. EPA.”  While that is true, it takes additional steps to explain why greenhouse gas (GHG) emissions from stationary sources are regulated under the Clean Air Act.  After all Massachusetts v. EPA was a case involving mobile sources under Title II of the Clean Air Act and not stationary sources under Title I of the Clean Air Act.  Ultimately, the answer is found in the EPA’s regulatory definition of a regulated new source review pollutant.  As defined in the code of federal regulations, a regulated NSR pollutant is a 1) a criteria pollutant for which a NAAQS has been established, 2) a pollutant subject to a standard under Clean Air Act Section 111 (new source performance standards, NSPS), 3) a pollutant regulated under Title VI (stratospheric ozone protection),  and 4) ” any pollutant that otherwise is subject to regulation under the Act.”

The Supreme Court in Massachusetts v. EPA required EPA to determine under CAA Section 202(a) whether GHGs from automobiles caused or contributed to air pollution which endangered public health or welfare.  On December 9, 2009, EPA determined that six individual GHGs and classes of GHGs endangered human health and welfare, and determined that automobiles released four of these six GHGs.   Pursuant to this determination, EPA promulgated light duty truck standards and heavy duty truck standards in May of 2010 and August of 2011, respectively.  Having passed these standards, GHGs were now “pollutant[s] subject to regulation under the Act” and now subject to regulation under NSR.  That being said, these standards were written to cover production years 2012-2016 for light duty vehicles and 2014-2018 for heavy duty trucks.  Presumably, if these standards were not extended or not rewritten to include GHGs, GHGs would no longer be regulated under NSR.

If you have followed recent US EPA proposed regulations, you may remember that EPA has proposed new source performance standards (NSPS) for utilities that cover GHGs (see our recent blog entry).  While, arguably, the best demonstrated technology standard for NSPS is not extremely onerous, promulgating a NSPS that regulates GHGs provides yet another hook for EPA to regulate GHGs since the definition of a regulated NSR pollutant includes a pollutant subject to Clean Air Act Section 111 (NSPS).  In other words, EPA appears to be reinforcing its authority to regulate GHGs under NSR.

If you have any questions regarding GHGs or the Clean Air Act, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Greenhouse Gas Performance Standards for New Stationary Sources

4 Apr

On March 27, 2012, Lisa Jackson (the EPA Administrator) signed a notice that the agency will propose a new rule to implement Greenhouse Gas (GHG) performance standards for new electric utility generating units which the agency has dubbed a “Proposed Carbon Pollution Standard for New Power Plants.”  The proposed regulation has not yet been published in the Federal Register and, thus, the notice period for comments has not commenced.  That being said, EPA has already made the draft language publicly available as well as provided summary fact sheets.

As noted above, the rule would only apply to new plants and would not apply to currently operating and newly permitted plants that begin construction over the next year.  Furthermore, the plant would only apply to fossil-fuel electrical utility generating units (EGUs), inlcuding fossil-fuel-fired boilers, integrated gasification combined cycle units and stationary combined cycle turbine units that generate electricity for sale and are larger than 25 megawatts.  Thus, EGUs burning other fuels, such as biomass would not be regulated under this rule.

EPA is considering an output-based standard of 1,000 lbs of CO2 per megawatt-hour.  The agency notes that approximately 95% of new natural gas combined cycle power plants already meet this standard without additional emissions controls.  Power plants utilizing coal would require some sort of carbon capture and storage, although this would not impose an additional burden upon utilities in states that already include carbon capture and storage (including Montana and Illinois).

In order for facilities to implement and optimize their control technology, EPA is proposing to allow facilities to use their 30-year average CO2 emissions to determine compliance.  Utilizing a 30-year average instead of an annual standard would allow new facilities time to tweak the performance of their equipment since initial emissions exceedences could be offset by subsequent compliance.

If you have any questions regarding the Proposed Carbon Pollution Standard for New Power Plants or other environmental regulation of utilities, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

The Global Reporting Initiative

9 Aug

The Global Reporting Initiative (GRI) is fast becoming the standard for sustainability reporting. The GRI develops frameworks for reporting non-financial disclosures through a consensus-based process. The main reporting document, which was published in 2006 is available on the GRI’s website and is freely available to the public. This document lays the foundation for the metrics that an organization can use to measure and report on its economic, environmental and social impacts.

The technical guidelines, now in version 3.1, only provide the basic framework for reporting and are generally supplemented by sector supplements. These supplements are available for electric utilities, food processors, mining, and financial services, among others. Sector supplements are in the development process for several sectors including: airports, construction and telecommunications. (more…)

The Carbon Disclosure Project

1 Aug

The Carbon Disclosure Project (CDP) is a not-for-profit company created for collecting data on carbon emissions. The goal is then to have this data available for investors, who can use it when making financial decisions. At this time there are about 3,000 organizations involved in the CDP. Generally, the reports made the DCP are available to the public at the CDP’s website.

The CDP provides a consistent, global reporting framework. The advantages to this program are its comparability and credibility due to the amount of organizations participating. The major disadvantages of the program are its costs and the potential to disclose some of your company’s confidential business information. However, both of these drawbacks can be minimized. (more…)

Stephen Thorn joining Chicago-Kent as adjunct law professor

30 Jul

Stephen Thorn is joining the Chicago-Kent School of Law as an Adjunct Law Professor.  He will be teaching the Advanced Legal Writing: Environmental Law course.

Stephen Thorn appointed to ISBA Environmental Section Council

18 Jun

Stephen Thorn has been appointed to the Environmental Law Section Council of the Illinois State Bar Association.  The Council evaluates and makes recommendations regarding existing and proposed legislation and regulations in the environmental law field.  The Council also monitors developments in the environmental law field and disseminates relevant information to other attorneys and business, industrial, government, and agricultural interests.

If you have any questions regarding the Council, contact us at 773-609-5320 or [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Is biomass energy clean?

9 Apr

Generally speaking, biomass is material from living or recently living organisms, most typically plant matter.  In turn, biomass energy is usully derived from burning these materials.  Biomass energy sources can take many forms: people most often think of wood chips from tree branches or stumps; however, it can also include crops grown exclusively, or in large part, for energy production such as corn, sorghum, sugarcane, and palm oil.  Many scientists and policy makers have assumed that biomass energy does not lead to a net increase in Green House Gas emissions (carbon dioxide in particular) because the plants consume and sequester carbon dioxide during their life cycle and, therefore, off-set the GHG emissions that occur when they are burned.   As a result, many states have included biomass in their definition of renewable energy resource for their Renewable Energy Standards (RES) (which require that a certain percentage of power is generated from renewable energy).    Recently, the assumption that biomass energy is always clean has been challenged. (more…)

Nuisance claims for Greenhouse Gases before Supreme Court

15 Mar

The U.S. Supreme Court has agreed to hear arguments this spring in American Electric Power (AEP) v. Connecticut regarding whether the emission of greenhouse gases from coal-fired power plants amounts to a public nuisance under common law.  The plaintiffs “seek judicially fashioned emissions caps on five utilities for their alleged contributions” to global warming.  The Supreme Court agreed to hear three issues.