All posts tagged 'EPA'

Texas Changes the Goal(s)

April 28, 2015 12:09
by Tricia Caliguire
Some say you can't go back, but last week, I did go back -- to Austin, Texas, where I went to law school. Things changed -- the east side has been gentrified, the traffic is horrendous, and Molly Ivins is gone – and are much the same – including that having the legislature in session makes for some interesting headlines.

Climate Change | Renewable Energy | Solar Energy | solar finance

EPA COMMENTS SUGGEST EMPHASIS ON CREATIVITY AND INTERNALIZING EXTERNALITIES IN CLIMATE STRATEGY

October 14, 2014 06:29
by Jameson Tweedie
The American Bar Association's Section of Energy, Environment and Resources held its Fall Conference last week.  Noteworthy from a climate perspective were the keynote address by Environmental Protection Agency Administrator Gina McCarthy, along with comments by other officials within President Obama's Administration with specific responsibility on climate issues—including Samantha Medlock, Deputy Associate Director for Climate Preparedness (White House Council on Environmental Quality); Hilary Tompkins, Solicitor (Department of the Interior); Cynthia Giles, Assistant Administrator, Office of Enforcement and Compliance Assurance (EPA); and Lorie Schmidt, Associate General Counsel of Air and Radiation (EPA).  Two repeated themes have particular resonance on climate issues. First was a repeated focus on the role of government to level the playing field.  Emphasized, for example, was the EPA’s effort to strongly enforce existing regulations and permits to eliminate competitive advantages that environmental rule-breaking gains individuals or companies over their rule-abiding competitors—in other words, to internalize the externalities associated with environmental rule-breaking.  Or, as Administrator McCarthy put it, to make compliance the efficient decision.  An analogous focus was evident on reducing the advantage the Administration believes heavy carbon-emitting companies gain over their lower-carbon competitors.  Ms. Schmidt, in particular, made clear the Administration's intent, in the wake of the authority left to the EPA by the Supreme Court in Utility Air Regulatory Group v. EPA, 573 U.S. ___ (2014), to continue imposing carbon limits on all applicable large emission sources. All indications are that the Administration is looking for opportunities to expand the reach of carbon emission limits beyond just those large sources.  The goal of leveling the carbon playing field across sources would undoubtedly have been simpler in many respects through a nationwide carbon tax or cap-and-trade system.  Indeed, John Cruden (current President of the Environmental Law Institute and nominee to head the Department of Justice’s Environment and Natural Resources Division), quoted former Secretary of State George Shultz who expressed the pressing need to put "all forms of energy production on an even playing field" by internalizing the externalities associated with carbon emissions and other pollutants.  But, with a national carbon tax or cap-and-trade system a congressional nonstarter, the Administration is left seeking a piecemeal set of solutions that, taken together, can achieve its climate goals.  This challenge seemed to lead naturally into the second theme of Administration personnel:  the need for creative solutions.  While by no means limited to climate change (for example, this was also reiterated in CERCLA and other enforcement contexts), the need for creative solutions seems particularly apt in the broad climate context facing the Administration.  That is, congressional impasse on top of stalled or snail pace efforts to reach an international framework.  Within these parameters, any significant short term climate change efforts are left to state and local action, to action within the corporate world (as former EPA head William Reilly was quoted, CEOs are the "unsung heroes" of the environmental movement, making environmental progress cost competitive) and to administrative action.  Ms. Medlock particularly pointed out the burden likely to fall on state and local government to devise innovative, cost-effective solutions to build resiliency along the coasts to the double challenge of rising sea levels and the increased storm intensity and storm surges which climate change is predicted to bring.  (Evidencing the Administration’s focus on this issue, Administrator McCarthy headed directly from the Conference to an event on Miami Beach highlighting the rising seas and extreme tides facing South Florida.)  As recent reports have indicated, while climate change impacts will be unevenly spread, no region will be spared its share of challenges, whether they be sea level rise and storm surge, flooding or drought, extreme temperatures or otherwise.  Without a doubt, creativity is required.

Carbon Emissions | Climate Change | Climate Change Effects | Rising Sea Levels

The DC Circuit Locks in USEPA's GHG Regulations - Sort Of

June 26, 2012 20:13
by J. Wylie Donald
It took a little over five years but USEPA's greenhouse gas regulation program is now firmly established - for the moment anyway.  The D.C. Circuit today rejected every challenge by numerous petitioners and intervenors to the whole raft of USEPA rules that followed from the critical Supreme Court decision, Massachusetts v. EPA, in 2007.  In Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency (attached), the D.C. Circuit considered arguments against the validity of The Endangerment Rule, Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(s) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009), The Tailpipe Rule, Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25,324 (May 7, 2010) The Tailoring Rule, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31, 514 (June 3, 2010), and The Timing Rule, Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17,004 (Apr. 2, 2010),  as well as a general challenge to the USEPA's implementation of the Clean Air Act.  Each argument was rejected.  The Endangerment and Tailpipe Rules are not arbitrary and capricious, no petitioner (whether from industry or a state) had standing to attack the Timing and Tailoring Rules, and the USEPA's interpretation of the relevant Clean Air Act provisions "is unambiguously correct." The blogosphere is overwhelmed with commentary and analysis.  Rather than repeat what others have already said, we want to focus on just one small segment (pages 45-50) of the 82 page opinion:  standing for the National Association of Home Builders (NAHB) and the National Oilseed Processors Association (NOPA).  The court singled out the NAHB and the NOPA because they were the only industry petitioners that had standing to challenge the "result of the Tailpipe Rule, which had the effect of expanding the [Prevention of Significant Deterioration] PSD program to never-regulated sources."  A little background is in order.  Massachusetts v. EPA established that greenhouse gases could be regulated as air pollutants (within the meaning of the Clean Air Act) by USEPA.  The Endangerment Finding concluded that six "well-mixed" greenhouse gases emitted from motor vehicles contributed to the "climate change problem" and thus were "reasonably anticipated to endanger public health and welfare."  As a result, USEPA issued the Tailpipe Rule, which set GHG emission standards for cars and light trucks. Two sections of the Clean Air Act, the PSD program and the state permitting requirements under Title V, are triggered by the emission of "any air pollutant" (which USEPA has interpreted to mean: any regulated air pollutant).  Accordingly, once GHGs were regulated anywhere under the Clean Air Act (such as from tailpipes of motor vehicles), GHGs constituted an "air pollutant" within the meaning of the Act and stationary sources that emitted GHGs became subject to PSD and Title V permitting requirements.  The proverbial camel's nose was in the tent, and the camel followed post-haste. This approach to regulation was long-standing and had been relevant to rules promulgated in 1978, 1980 and 2002.  Since the Act provided for a basis for review only within 60 days of the promulgation of national regulations, challenges to USEPA's approach were very much time-barred, but with one very significant exception: "if such petition is based solely on grounds arising after such sixtieth day, ..." 42 U.S.C. 7607(b)(1). What this means is that an entity whose claim has recently ripened has standing to challenge the USEPA's approach.  Stated differently, entities that did not have standing in 1978, 1980 or 2002 because "their alleged injuries were only speculative" (such as NAHB and NOPA), may subsequently find they do have standing because their facilities are now regulated.  NOPA asserted that "[prior] to promulgation of the Tailpipe Rule, no member's facility had triggered PSD review by virtue of emissions of a non-criteria pollutant.  Now that greenhouse gases are a regulated non-criteria pollutant, many NOPA members will have to obtain PSD permits as [a] result of their facilities' emissions ..."  NAHB members who likewise were not subject to PSD requirements, were now certain to have to obtain PSD permits sometime in the future.  Accordingly, unlike other industry petitioners, NOPA and NAHB were found to have standing to challenge USEPA's "interpretation of the PSD permitting triggers ..."  This result is important.  Absent regulations like the Tailoring Rule, GHG regulation will be far-reaching and will bring in entities not previously subject to regulation.  Those entities will be entitled to challenge the regulation, as well as the methods USEPA uses to implement the regulations, even if those methods have been around for decades.  Thus, even though USEPA's GHG program sailed through this set of challenges, the door certainly is not closed to other challenges as GHG regulation expands.    20120626 Coalition for Responsible Regulation, Inc. v EPA (D.C. Cir.).pdf (188.21 kb)

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

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