Carbon Dioxide

CANCUN AND COP 16 - TIME FOR A NEW APPROACH?

November 30, 2010 07:34
by J. Wylie Donald
There are a variety of metrics one could use to test the world's interest in the discussions being held by climate change policymakers gathering in Cancun this week. I will use a very personal one. As the Conference of the Parties came together in Copenhagen last year (COP 15), I was often on the phone with news organizations seeking perspective on the Kyoto Protocol, clean development mechanisms, carbon taxes, cap-and-trade and anything else that might be relevant to discussions of climate change and the world's response to it. This year in the run up to COP 16 not a single journalist has called, or even emailed. Taking a less parochial view, if you go to the United Nations Framework Convention on Climate Change "Essential Background" webpage, you will learn right in the middle of the page that Somalia is the 193rd party to the Kyoto Protocol, a fact that I feel confident in concluding will have absolutely no impact on any climate change response anywhere (even in Somalia), but which the UNFCCC functionaries conclude is essential background.So I join in the cynics that conclude little will come out of Cancun. Some are calling for a completely new attitude to climate talks. Yesterday's Wall Street Journal for example stakes out four new positions in an article styled: How to Change the Global Energy Conversation. Briefly, the authors posit that the approach that has been tried for two decades, and failed for two decades, has it all wrong. Rather than trying to raise the cost of fossil fuels, governments would be focusing on lowering the cost of renewable energy by spurring innovation. They point out that the U.S. military's support of chip technology innovation in the 50s drove those prices down 50-fold over the course of a decade. While those clean technologies are developing, greenhouse gases should be reined in through the easy fixes, such as replacing old inefficient diesel generators throughout the less developed world and focusing on capturing methane emissions from landfills. And while we are involved in less-developed countries, we should jettison the idea that there needs to be a massive transfer of wealth from rich states to poor states to help stave off the negative effects of climate change. Instead, let's recognize that a flood or earthquake or hurricane is devastating regardless of the cause and focus on building more disaster resilient infrastructure. More importantly, wealthier societies are better able to handle disasters and thus the ultimate goal must be to increase the wealth of poorer countries and to do that poorer countries need cheap energy, which brings us back to the innovation goal. Last, the authors reject universal consensus and point out that 80% of all emissions, 85% of GDP, 80% of world trade and 2/3 of the world's population are in the G-20 nations. Those nations should get together and pick their strategy.I have written before (and no doubt will write again) that what business needs is guidance. Whether it is a conference of 193 parties, or a group of 20, there needs to be a roadmap on where climate change policy is going, so business can plan. I have not seen the analysis that calculates the economic loss caused by climate change policy paralysis. Undoubtedly it is huge. What national policymakers need to figure out at and after Cancun is whether the Kyoto process can work. If not, it is time to do something else.

Carbon Dioxide | Carbon Emissions | Climate Change

MIRANT Sues in Challenge to Montgomery County Carbon Tax

June 3, 2010 05:22
by J. Wylie Donald
"First in the nation" touts one website. Another speaks of the "kickstart ... to a low-carbon future." Montgomery County, Maryland has leaped over the gridlock in Washington and passed a tax of $5 per ton from any stationary source emitting more than a million tons of carbon dioxide per year. One web site quotes the bill's sponsor: "This is a chance for us to lay claim to a revenue stream and clean up after a polluter at a time when we are under financial constraints." (click here) There is no dissembling here. Two points come through loud and clear: 1) carbon dioxide is being lumped in with PM10, NOx and SOx, mercury and all the other things that might go up a stack; and 2) a new revenue stream has been found and tapped.

Carbon Dioxide | Climate Change

CDP 2010 Is Upon Us

March 5, 2010 17:02
by J. Wylie Donald
We talked in January about the SEC's disclosure guidance and noted the relevance of the Carbon Disclosure Project. It's almost as if I have a hotline to 40 Bowling Green Lane in London, where the CDP offices are. I receved earlier this week their announcement of the 2010 questionnaire. It has been sent to 4,500 companies globally. The number of institutional investors behind the mailing is over 500 "with a combined US$64 trillion of assets under management." The email has this to say about the SEC guidance: "CDP welcomes the recent climate change risk disclosure guidance by the Securities and Exchange Commission (SEC); an important step in helping US companies better report material climate change impacts to their investors." Following one of the links in the email, I proceeded to the CDP webpage, where I learned more. The CDP recognizes one of the critical weaknesses of climate change data in a global marketplace: "There is currently no global carbon disclosure framework and ... to minimize the financial and reporting burden for companies, guidance on disclosure of climate change information must be as harmonized as possible." To achieve that end, CDP manages the activities of the Carbon Disclosure Project(CDSB). The CDSB has prepared a draft Reporting Framework www.cdsb-global.org/uploads/pdf/CDSB_Reporting_Framework.pdf to further the dialogue of disclosure. In the CDSB's words: "the Reporting Framework provides a workable filter for companies to identify, and for investors to see, the major trends and significant events related to climate change that affect a company’s current or future financial condition."

Carbon Dioxide | Climate Change

Disclosure Pressure Ratchets Upward - Will D&O Policies Provide Cover?

February 16, 2010 02:42
by J. Wylie Donald
I concluded that I needed to pay more attention to climate change issues when I attended a seminar in 2005 and one of the speakers commented that inadequate climate change disclosures would not be covered under a D&O policy because of the pollution exclusion. Could it be so? The argument was deceptively simple. Carbon dioxide was a "pollutant." The inadequate disclosure "arose" out of the "release" of carbon dioxide. There is no coverage for same. Q.E.D. Thoughtful analysis, however, dispatches this canard. As we have written previously, carbon dioxide should not be classified as a pollutant. It does not irritate or contaminate: it is biologically benign except at impossibly high concentrations, and it is found in the atmosphere in billions of tons, a natural and essential constituent. And because it does not make the atmosphere impure, it is not a pollutant. But one does not even have to reach that conclusion. Any liability alleged against a director or officer for inadequate disclosure of risks from rising CO2 levels, arises from the inadequate disclosure not from the release of carbon dioxide. Cf. Owens Corning v. National Union Fire Insurance Co., No. 97-3367, 1998 WL 774109 (6th Cir. Oct. 13, 1998) (alleged inadequate disclosure of asbestos risk); Boliden Ltd. v. Liberty Mutual Insurance Co., Dkt. No. 05-CV-284493PD1, 2007 CanLII 11309 (Ont. Super. Ct. Apr. 3, 2007) (ore processing risks); Sealed Air v. Royal Indem. Co., 961 A.2d 1195, 404 N.J. Super. 363 (App. Div. 2008) (asbestos risk). But see National Union Fire Insurance Co. v. U.S. Liquids, Inc., 88 Fed. Appx. 725 (5th Cir. 2004) (per curiam) (pollution exclusion applies to allegations of improper disclosure of illegal toxic waste disposal). The requirements for disclosure are ratcheting upward. It started with activist shareholders requesting climate change disclosure at their companies' annual meetings. Next came the Carbon Disclosure Project, which over time has enlisted over 2000 companies in their annual reporting. See cdproject.net. In 2007, New York Attorney General Cuomo served subpoenas on certain publicly traded electric utilities and a coal company (based far from New York), seeking information on their climate change disclosures. New York has settled with three of the five companies, Xcel Energy, Dynegy and most recently with AES Corp. Dominion Resources and Peabody Energy remain in the dispute. The National Association of Insurance Commissioners weighed in with their disclosure requirements for insurance companies in 2009 (effective 2010). And now, with the publication of the SEC's recent interpretive guidance on climate change disclosures, it is only a matter of time before some investor's prescience is not rewarded and he or she or it concludes that the fault lies not in the stars, but in a corporate prospectus.   Should that come to pass, we anticipate the corporation will tender the claim to its D&O insurer for a defense. Undoubtedly the insurer will consider asserting the application of the policy's pollution exclusion. The ultimate result will depend on all the facts. One fact will be the extent and timing of disclosures. Another, however, could be that the policyholder had the pollution exclusion endorsed out its policy. That is a step the risk manager could be taking right now, regardless of what the corporate lawyers ultimately conclude about disclosure.

Carbon Dioxide | Climate Change | Insurance | Greenhouse Gases

16 States Back EPA in Suit Challenging Endangerment Finding

January 26, 2010 07:02
It has only been a month since an organization called the Coalition for Responsible Regulation, Inc. filed suit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the U.S. Environmental Protection Agency’s endangerment finding and, already, 16 states have lined up with the EPA, seeking to intervene in support of the challenged regulation.   The challenged regulation, entitled “Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act” (the “Final Rule”), was published in the Federal Register on December 15, 2009 and was issued by the EPA in response to the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, 549 U.S. 497 (2007).  The rules regulate emissions of greenhouse gases from new motor vehicles and engines.    In the Final Rule, the Administrator finds that “the body of scientific evidence compellingly supports” her conclusion that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” She defines the resulting air pollution referred to in Section 202(a) of the Clean Air Act to be “the mix of six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O)), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfer hexafluoride (SF6).”  The Administrator concluded that the mix of greenhouse gases from transportation sources contribute to the climate change problem, which is reasonably anticipated to endanger public health and welfare.   The Final Rule triggers the EPA’s statutory duty to promulgate regulations establishing emissions standards for motor vehicles covered by Section 202(a)of the Clean Air Act.   Noting that the Court’s action on the petition for review will affect the public health and welfare of their residents and will also affect a host of global warming impacts that the proposed intervenors are suffering, the following states seek to intervene in support of the EPA: Commonwealth of Massachusetts and the States of Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.  The City of New York also filed in support of the EPA.   Notably absent from the Motion for Leave to Intervene as Respondents is the State of New Jersey, from which EPA Administrator Lisa Jackson came as the prior Commissioner of the New Jersey Department of Environmental Protection. New Jersey, which just last week inaugurated new Republican Governor Chris Christie, who unseated Democrat Jon Corzine, formerly supported climate change litigation and was among the states challenging the EPA in Massachusetts v. EPA.  The following states were not in the Massachusetts v. EPA case but joined the fight now in support of the regulations: Arizona, Delaware, Iowa, Maryland and New Hampshire.

Carbon Dioxide | Climate Change | Legislation | Regulation | Greenhouse Gases

AbCDE - Thoughts on an "Absolute" Carbon Dioxide Exclusion

October 27, 2009 17:28
by J. Wylie Donald
We trust that those of you following climate change litigation have heard the veritable tap dance of decisions emanating out of the federal courts in the last month.  First, Connecticut v. American Electric Power was reversed by the Second Circuit.  That was followed by the District Court for the Northern District of California dismissing Native Village of Kivalina v. ExxonMobil and rejecting the Second Circuit’s analysis.  The Fifth Circuit, not to be outdone, reversed the Comer v. Murphy Oil decision, but also provided a special concurring opinion where the judge advised that he would have affirmed on alternative grounds.  All of these cases are thoroughly discussed in the blogosphere. What has been less thoroughly ventilated, however, are the implications for insurance coverage for climate change liability claims.  We have discussed before the Steadfast v. AES coverage case filed in Virginia where the insurer seeks to avoid coverage for the Kivalina suit.  We thought originally that Kivalina’s dismissal might have made that suit go away.  However, with two climate change suits now headed back to the trial court (barring further appeal), we will be surprised if Kivalina is not appealed, and further surprised if Steadfast does not provide some law on climate change coverage. One subject that will not be addressed in Steadfast, however, is the efficacy of an "absolute"1 carbon dioxide exclusion.  Yes, you heard that correctly:  the AbCDE.  I regularly ask my insurer colleagues about their thinking on this and just as regularly am told that it is not in the works or even discussed.  The spoken reason is fairly straightforward:  if carbon dioxide is a pollutant under the terms of the policy, and damage from pollution is excluded, then claims arising from carbon dioxide emissions are already excluded by the so-called absolute pollution exclusion and the AbCDE is not needed.  The unspoken reason reflects the converse:  if a carbon dioxide exclusion is necessary, it must be the case that a policy without such an exclusion provides coverage for carbon dioxide liability - even if it has a pollution exclusion.  From an insurer’s perspective, that could be an expensive outcome and suggests a reason to avoid implementing the AbCDE.  History and policyholder experience suggest, however, a different outcome.  Many will recall the time when coverage for asbestos-related loss was hotly debated.  Where insurers lacked express asbestos exclusions, they sought refuge in pollution exclusions.  Success was mixed.  The New York Court of Appeals’ decision in Continental Casualty Co. v. Rapid-American Corp., 593 N.Y.S.2d 966 (N.Y. 1993), is typical.  Although the court concluded that asbestos could be a pollutant, irritant or contaminant within the meaning of the liability policy, it determined the policy’s pollution exclusion to be ambiguous in context and coverage for asbestos loss was found.  Ultimately, the insurance industry recognized the solution to its asbestos problems and decisions like Rapid-American was to adopt universally what is referred to by some as an absolute asbestos exclusion.  Just as with asbestos, there are infirmities in the pollution exclusion as applied to carbon dioxide (such as the doctrine of reasonable expectations, whether carbon dioxide is reasonably understood to be an irritant or contaminant, whether an agency’s classification of carbon dioxide as a “pollutant” has any relevance to a contract between two private parties, among others).  Indeed, one state supreme court has found that exhaled carbon dioxide was not a pollutant, and thus was not excluded by a comprehensive general liability policy’s absolute pollution exclusion.  Donaldson v. Urban Land Interests, Inc., 564 N.W.2d 728, 732 (Wis. 1997).  Unless carbon dioxide liability suits disappear (and the last month is not auspicious in that regard), it is inevitable that more coverage disputes will unfold and that policyholders will secure coverage victories in some cases.  Against the backdrop of those victories, can it be doubted that a carbon dioxide exclusion will take shape? 1We note that the term “absolute “ is somewhat of a misnomer for any exclusion.  A valuable discussion of this can be found at Ira Gottlieb, The Decline of the So-Called ‘Absolute’ Pollution Exclusion, Mealey’s Litig. Rep. (Feb. 12, 2002).

Carbon Dioxide | Climate Change | Insurance | Legislation | Renewable Energy

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Click here for more information and a list of our group members.

MONTH LIST

© 2017 McCarter & English, LLP. All Rights Reserved. disclaimer
navbottom image