Climate Change

Revisions to the Green Guides: Part II - Carbon Offset Claims

October 21, 2010 06:23
by J. Wylie Donald
We wrote last about the Federal Trade Commission's proposed revisions to the Green Guides (Proposed Revisions to the Green Guides (Oct. 6, 2010 ) click here) and the Guides' proposed new guidance on renewable energy. Today we will address how the Guides intend to treat marketing claims regarding carbon offsets.

Carbon Emissions | Climate Change | Renewable Energy

Revisions to the Green Guides: Part I - Renewable Energy Claims

October 20, 2010 17:58
by J. Wylie Donald
The Federal Trade Commission proposed revisions to its "Green Guides" at the beginning of this month. Proposed Revisions to the Green Guides (Oct. 6, 2010) Click here. The comment period runs through December 10, 2010. Most interesting for readers of this blog are the two new proposed guides directed to renewable energy and carbon offsets, which we discuss below. For those unfamiliar with the Green Guides, they are the guidance provided by the FTC for marketers to assist them in avoiding making misleading environmental claims. First published in 1992, and updated in 1996 and 1998, the Guides provide "1) general principles that apply to all environmental marketing claims; 2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and 3) how marketers can qualify their claims to avoid deceiving consumers." FTC Press Release (Oct. 6, 2010) Click here. Although the Green Guides are not law, the FTC uses them to determine when to bring enforcement actions. As stated in the regulations: "These guides specifically address the application of Section 5 of the FTC Act to environmental advertising and marketing practices. They provide the basis for voluntary compliance with such laws by members of industry. Conduct inconsistent with the positions articulated in these guides may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the behavior falls within the scope of conduct declared unlawful by the statute." 16 C.F.R. § 260.1 test ttt

Climate Change | Renewable Energy

Highest Court Decisions Affirm Beach Replenishment is Avulsion - a Key Development in a World of Rising Sea Levels

September 23, 2010 08:57
by J. Wylie Donald
Last December 9 was the height of coincidences.  Both the United States Supreme Court and the New Jersey Supreme Court heard oral arguments on the same day in beach replenishment cases.  The fortuity did not continue.  Stop the Beach Renourishment, Inc. v. Florida  was decided by the U.S. Supreme Court in June.  It took the New Jersey Supreme Court over three months longer to decide City of Long Branch v. Liu, where the opinion came down just this past Tuesday.  Nevertheless, both decisions affirmed that beachfront ownership law would be determined based on common law rules.  More significantly, the State's interest in control of the beaches was found preeminent. In Stop the Beach, the Supreme Court considered the following facts:  shorefront property owners in Walton County, Florida, for many years had enjoyed unfettered access to the warm waters of the Gulf.  As part of its efforts to preserve Florida's beaches, the State had renourished (pumped tons of sand) onto the homeowners' beach, and then claimed that land for Florida.  In legal terminology, the property owners' property line changed from the common law mean high water line to a statutorily established erosion control line.  In other words, beach front property now meant that you fronted on a beach, rather than fronted on the ocean.  The homeowners challenged this development as an unconstitutional "taking" under the 5th and 14th Amendments to the Constitution. While the Court could not come to agreement on the meaning of taking in this context (a plurality opinion with two concurrences), the Court was unanimous that this particular circumstance was not one.  It concluded (as had Florida's Supreme Court) that Florida's common law treated the creation of a beach by replenishment as an "avulsion" and under the common law, the Court concluded, homeowners did not acquire ownership rights to such lands, although they did acquire (as Florida conceded) certain other rights (such as access across and an unobstructed view).  In Liu the facts were less sympathetic.  The Lius' upland property had been condemned and its value had been set by a trial.  The Lius also sought, however, to be compensated for the value created when New Jersey's beach replenishment program deposited sand on the Lius' beach and created more land.  Here too New Jersey's highest court found that beach replenishment constituted an "avulsion" and that because the Lius never owned the land below mean high water, they could not own the land created when sand was deposited beyond mean high water, even if that land rose above the surface and severed the Luis's contact with the ocean. Although neither decision addressed the rising sea level problem brought about by climate change, they are very likely to figure prominently in future controversies arising as communities attempt to deal with the submergence of the shore.  Both appellate courts found that beach replenishment constituted an avulsion:  “a sudden and perceptible loss or addition to land by the action of water or otherwise.”  Liu, at 14, “sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream,” Stop the Beach Renourishment at 3.  Since the common law did not permit property boundaries to be changed by an avulsion, all that was necessary for a decision in favor of the governmental defendants was a finding that beach replenishment constituted an avulsion, which is what the courts held.  One can envision a number of ways how that conclusion may not be obvious.  The courts creating the common law never considered that massive pumps at the bidding of the State would move the seabed.  Nor was it contemplated that governmental entities would be able, at their discretion, to convert littoral properties to land-locked properties.  But be that as it may, this is the law of the land. And as such, communities at the shore can take much solace that they will be able to act to preserve their communities by establishing beaches around their boundaries before they are engulfed.  And who is to say that such beaches may not morph into sand dunes, or even sand walls.  And will the common law permit seawalls and revetments to be constructed on the new lands, converting the former beachfront properties, into beach-view properties, then dune-view properties and ultimately into seawall view properties. The final chapter of this saga is not yet written.  What remains to be seen is whether in the future the littoral property owners at the beach will be as ineffective against the power of the State, as the courtiers in the fable of King Canute were against the rising tide.

Climate Change | Legislation | Regulation | Weather

Sinkholes and Climate Change - Leading to a Lack of Hurricane Coverage

September 21, 2010 18:24
by J. Wylie Donald
One of the things that is so intriguing about climate change is the development of things that no one is anticipating. More sophisticated thinkers call this the "law of unexpected consequences." I simply defer to Heraclitus: "expect the unexpected." So here. Today's Wall Street Journal has an intriguing article on the asymptotic rise of sinkhole claims against insurance companies. Florida's insurer of last resort, Citizens Property Insurance Corp., has seen sinkhole claim rates double since last year. Insurance industry spokesmen and some legislators blame a rapid increase in the number of public adjusters in Florida. The public adjusters respond that they are merely enforcing policyholders' contractual rights. They further assert that the source of the claims is too-rapid development that allowed building in areas sure to develop sinkholes. Sinkhole coverage is mandated by Florida law. See F.S.A. 627.706. One insurer uses this language: "We cover sinkhole loss to your house and other permanent structures caused by sinkhole activity. We also cover the costs to: stabilize the land under and around your damaged house or other permanent structure; stabilize the house or other permanent structure; and repair the foundation, caused by sinkhole activity in accordance with the recommendations of a professional engineer approved by us and in consultation with you." You can see the room for conflict when this is juxtaposed with a typical exclusion for structural movement: "We do not cover any loss caused by the settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings except loss caused by sinkhole activity or catastrophic ground coverage collapse as provided under Extra Coverages ..." It is set up as a classic battle of the experts. If the policyholder's expert is credited, a cracked foundation is caused by a sinkhole. If the insurer's expert is accepted, the cracked foundation settled and is excluded.  So what do sinkholes have to do with hurricane insurance? We have previously discussed that Citizens does not charge enough premium to cover expected hurricane losses. See climatelawyers blog of Feb. 5, 2009. Now we learn that the carrier has not charged enough premium to cover sinkhole claims either. In fact, according to the Wall Street Journal, Citizens paid out last year over 5 times what it collected in sinkhole premiums. So just when Florida needs its property insurance the most (because climate change is going to bring more frequent and more severe storms), Florida's insurers are even less likely to be able to pay the claims because of the mushrooming sinkhole problem. I also should comment on the attacks on public adjusters. The insurance contracts provide certain rights. A public adjuster earns no dollars for his/her client unless someone (judge, jury, arbitrator, claims handler) credits his/her argument that there is coverage. The flip side of this is that the decisionmaker is also deciding that the carrier's language does not exclude the claim. If these circumstances occur, it seems a little ostrich-like to blame the public adjusters for the fact that there are too many claims. The problem has to be in the policy language, with which public adjusters had nothing to do. The so-called problem with adjusters should not have been unexpected.  Legislators are not insurance policy draftsmen.  The threat to Citizens and Florida's other home-grown property insurers may have been less apparent.  Who would have thought that sinkholes would take away the insurance structure Florida labored mightily to build in the face of increasing storms?  Or who would have thought otherwise?  Florida's insurance paradigm is broken, whether for hurricanes or sinkholes.  Premium does not cover losses.  Until that is fixed, one can expect more problems even if the exact contours of the problems are not now known.

Climate Change | Insurance | Weather

The Most Extreme Weather is Climate Change at the Margins

September 8, 2010 16:53
by J. Wylie Donald
As the season of elections unfolds, I am reminded that "all politics is local." I think the same might be said for weather and we have had plenty of that this year. Some might say, "well, no more than anywhere else." But I would disagree, and the Baltimore Sun's September 8 front page story by Frank D. Roylance supports me. . Maryland this year has tied or set records for snowiest winter, snowiest February, hottest summer, the most 90 degree days, and the most 100 degree days. Couple that with drought conditions that have ruined the corn crop, brought summer vegetables in too early, threatens the soybean crop and may prevent the planting of winter wheat and barley, and I think it is fair to say that Maryland got extra in the weather department this year. So what does all this have to do with climate change. Quoting experts at the National Center for Atmospheric Research, the Sun provides one of the best explanations I have seen: "global warming's role is felt most when natural climate variability is already pushing weather events toward extremes.". By way of example, the impact of global warming is "if the drought starts to form, the onset is quicker; it's a little more intense and the heat waves are a little hotter . ... Sometimes it's the straw that breaks the camel's back, ..." This analysis is right on the money, and of great significance. Without climate change, natural climate variability will on occasion lead to extremes. Engineers incorporate those anticipated events into hurricane building codes, flood plain delineations, dam storage capacity and a host of other standards on which we rely. If the anticipated extremes are relied upon, and climate change pushes those extremes even further, then those standards may no longer be valid.  That may disrupt many sets of expectations. For a lawyer, this may mean that standard language may be inadequate to protect his client. If, for example, a contract does not require flood insurance because the property is outside the plotted 100-year floodplain, but climate change has enlarged the floodplain, then a bank's security may be at risk.  If a community's water supply is based on the local reservoir, but flood control requirements force lower water levels to accommodate the more severe storms predicted by climate scientists, counsel should be looking to protect her client's ability to conduct its business, including preserving water availability.  The point is not that climate change will force a wholesale revision of how business is conducted.  Rather, as is generally the case, success or failure will depend on how one attends to risks at the margins and in order to do that, one will have to understand them.  This applies not just to lawyers, but to anyone investing, or planning, or managing, or governing. Another famous saying concerns everyone talking about the weather, and nobody doing anything about it.  Some would say, that sounds just like politics. updated

Climate Change | Weather

CT’s Field of Dreams: If We Build It, Electric Vehicles Will Come to the State

September 2, 2010 08:39
A panel of Connecticut’s energy, environmental, transportation and economic development leaders reached consensus this week on a road map for supporting the next generation of plug in electric vehicles. The initiatives identified in the report, state officials said, promise to create incentives for electric car consumers and send clear signals to the automobile industry and trade allies that Connecticut should be high on the deployment list for the next generation of clean cars.  Officials also promised that the efforts would help the state to reduce greenhouse gas emissions and promote energy independence and security. The Electric Vehicles Infrastructure Council, which was formed last November in response to an executive order issued by Gov. M. Jodi Rell, issued its Final Report Wednesday, identifying strategic priorities intended to pave the way for improvements like a network of public and in-home charging stations and legislative priorities that would offer tax incentives to help consumers avoid sticker shock. Council members emphasized in the final report that Connecticut’s goal is to gain early access to the first wave of mass-produced electric cars, vehicles promising to promote green jobs and smart grid features while reducing carbon dioxide, a key contributor to global climate change. Two automobile manufacturers with next generation electric cars in development, General Motors and Nissan, have already informed the state government that, especially given the interest and industry support demonstrated by the work of the Council, they plan to include Connecticut in their first wave of product roll-outs this fall.  While welcome news, that also puts pressure on the state’s electric utility industry, building officials, transportation officials, utility regulators and others to work together to develop public electric vehicle charging stations and facilitate the deployment of affordable home charging stations so that electric vehicles can charge in garages overnight. Only 24 Connecticut motorists have registered plug-in electric vehicles in the state so far, but the Council’s Final Report sets a goal of 25,000 by 2020.  To achieve that goal, officials agreed they need to work together to streamline regulatory and permitting processes, encouraging overnight charging with favorable “time-of-use” electric rates, and build public-private partnerships to develop a network of convenient charging stations across the state to ease so-called “range anxiety,” the fear that a motorist might not be able to find charging stations on the road.  Rapid installation of home charging stations is also critical, officials said, to ensure that electric vehicle buyers can get the home equipment installed promptly after purchasing the new vehicles from auto dealer showrooms. The Council concluded that addressing these infrastructure concerns and enacting tax incentives and other laws that streamline approvals for electric vehicles will induce consumer interest in buying the vehicles and attract the industry to prioritize the upcoming product releases in Connecticut. Many of the more than 30 recommendations of the Council are underway already, as officials form implementation teams to begin to tackle the challenges of the industry. Author’s Note: The author is a member of the Council, having been appointed by Gov. Rell to serve as a representative from the private sector member of the electric energy industry.  All documents and presentations assembled by the Council can be viewed by copying the following URL into your browser:

Climate Change | Green Marketing | Renewable Energy

Tilting at Windmills: Cape Wind PPA Pending Review at MA DPU

August 20, 2010 04:26
Its been 10 years since Cape Wind Associates, LLC originally proposed developing 130 wind turbines in Nantucket Sound and, after navigating successfully through a labyrinth of federal, state and local permitting and siting challenges and fending off the perfect storm of litigation, the winds may finally be blowing in Cape Wind’s direction. (Check out this link for a good history of Cape Wind, details on the project, and legal challenges and the controversies surrounding it: Even though now fully permitted for construction, however, the challenges for the nation’s first offshore wind project are far from over as utility regulators consider whether to approve the power purchase agreement (PPA) and public debate in Massachusetts continues to question the wisdom of allowing governmental support for a private project.  Cape Wind still needs to complete the project financing arrangements, estimated at $1 to $2 billion, and an approved PPA is a crucial foundation for commercial financing. According to National Grid’s May 10, 2010 filing with the Massachusetts Department of Public Utilities (DPU), in which it submitted the PPA documents requesting approval of the power purchase arrangements, the utility subsidiaries of National Grid, Massachusetts Electric Company and Nantucket Electric Company plan to buy about 50% of Cape Wind’s power output at 20.7 cents per kilowatt hour over 15 years, which would represent approximately 3.5% of National Grid’s electric distribution load in Massachusetts and exceed its mandate under the state’s renewable portfolio standard obligation, as set forth in the Green Communities Act.  National Grid further stated that the average residential homeowner using 500 kWh per month would see an increase of $1.59 per month in 2013, equal to 2.2% increase on the bill at today’s energy commodity prices. And so, now that the tough environmental and siting decisions have been made in Cape Wind’s favor, the issue has been joined at the DPU on the project’s economics and whether the public (in the form of Massachusetts ratepayers) should support the project.  Just this week, an Op-Ed writer in the Boston Globe criticized the administration of Massachusetts Gov. Deval Patrick’s alleged lack of transparency, political support for the high energy cost of the PPA and the price risk contingencies in the contract.  (The energy cost can go up or down depending on certain market conditions and there is a limited sharing of risk in the PPA related to the project’s power output and qualification for tax credits.  The actual costs presented to the DPU are based on forecasts, but there are uncertainties and risks as well.) This might be a good time to comment on what I like to call the renewable energy economic facts of life.  It’s a fact that renewable energy costs more than energy generated with fossil fuel sources, such as coal or natural gas.  There’s simply no way around that fact. Whether a project is solar, biomass, fuel cell, wind powered or some other renewable source, the cost of the technology and project development is simply higher and sometimes far more expensive than fossil generation.  When it comes to market forces, therefore, generators of renewable power cannot sell the energy economically into a functioning market without substantial price supports or other subsidies. One such subsidy is the federal government’s 30% investment tax credit and the production tax credit, but these tax credits are not enough to help renewable projects to clear the hurdle.  They still need a long-term PPA with a credit-worthy energy buyer and a vibrant market for the renewable energy certificates (RECs) generated by the project.  (Just yesterday, New Jersey's governor signed into law a measure that would create ocean RECs or ORECs to support such projects.  See blog post below.)  Depending on deal terms that include who (buyer or seller) acquires the ownership rights to the RECs, the per-kilowatt-hour energy cost can increase or decrease. In Cape Wind’s case, the PPA buyer is acquiring all of the environmental attributes of the wind power, including the RECs, and capacity rights in addition to the energy itself.  That means that National Grid will have the right to sell the RECs in the market and credit the ratepayers for revenues generated in the marketplace as a result.  The net energy cost, therefore, will likely be less than the 20.7 cents per kWh specified in the PPA. Ultimately, the question for Massachusetts regulators and the public will be whether the renewable energy, which promises clean renewable energy that reduces greenhouse gas emissions and global climate change, is worth the cost.  If we really want to diversify our power supply with clean renewable energy and reduce our reliance on coal and natural gas fired generation, projects like Cape Wind deserve public support and contracts like the ones pending before the DPU merit serious consideration.

Climate Change | Renewable Energy | Solar Energy | Weather

NJ Governor Signs Offshore Wind Measure Into Law

August 19, 2010 08:47
New Jersey Gov. Chris Christie signed into law the Offshore Wind Economic Development Act Thursday, thereby endorsing an initiative designed to spur economic growth through the development of renewable energy and green jobs. Just as NJ has been a leader in providing substantial market-based economic support for solar energy through a rigorous solar renewable energy certificate, this new legislation is intended to establish an offshore wind renewable energy certificate program (OREC) to provide market support for wind energy.  The measure also provides offshore wind developers with financial assistance and can be combined with tax credits from existing programs for businesses that construct manufacturing, assemblage and provide water access facilities to support the development of qualified offshore wind projects. “The Offshore Wind Economic Development Act will provide New Jersey with an opportunity to leverage our vast resources and innovative technologies to allow businesses to engage in new and emerging sectors of the energy industry,” Christie said in a prepared statement. “Developing New Jersey’s renewable energy resources and industry is critical to our state’s manufacturing and technology future. The bill directs the New Jersey Board of Public Utilities (BPU) to develop an offshore renewable energy certificate program and, by requiring that a percentage of electricity sold in the state to be generated from offshore wind energy, creates an offshore wind “carve out,” or subdivision within the existing renewable portfolio standard in NJ similar to the solar program. The offshore wind carve-out is intended to support at least 1,100 megawatts of generation from “qualified” offshore wind projects, which are defined to include projects developed in the Atlantic Ocean and which are connected to the electric transmission system in New Jersey. Through the legislation, the New Jersey Economic Development Authority (EDA) will provide financial assistance to qualified offshore wind projects and associated equipment manufacturers and assembling facilities. The signing of the Offshore Wind bill is not the first time Christie has expressed support in recent months for offshore wind development.  In June, he signed a memorandum of understanding with nine other East Coast governors establishing the Atlantic Offshore Wind Energy Consortium to facilitate federal-state cooperation for commercial wind development on the Outer Continental Shelf off of the Atlantic coast.

Climate Change | Solar Energy | Weather

EPA proposes backstop rules to help GHG Tailoring Rule Rollout

August 18, 2010 09:53
As the U.S. Environmental Protection Agency continues to roll out the details for the so-called greenhouse gas (GHG) tailoring rule, Step 1 of which is set to take effect on Jan. 2, 2011, EPA last week announced two expedited rulemakings designed to plug regulatory gaps that could impair the GHG Tailoring Rule’s implementation. EPA announced last week that 13 states have non-compliant state implementation plans (or SIPs) in that they do not clearly identify GHGs as pollutants subject to the Prevention of Significant Deterioration (PSD) program permitting.  As a result, large existing sources in those states that might be increasing their GHG emissions by more than 75,000 tons per year (the GHG Tailoring Rule first step threshold) cannot obtain a PSD permit that covers GHGs as required by the GHG Tailoring Rule. EPA is therefore proposing to launch a “SIP Call” to those 13 states and any other state that determines its own program is inadequate to cover GHGs.  Separately, recognizing that some states may not act quickly enough to allow for compliance by the January 2, 2011 implementation of the GHG Tailoring Rule, EPA announced that, for the first time since the Clean Air Act was enacted, the EPA plans to issue its own Federal Implementation Plan (or “FIP”) for GHGs to allow for the EPA to issue its own federal PSD permit to sources above the thresholds that are located in states not yet compliant with the rules. These gap-filling regulatory developments are aimed at facilitating GHG Tailoring Rule compliance by the biggest sources of GHG emissions. It covers large industrial facilities such as power plants, cement kilns and oil refineries that are responsible for 70% of the GHGs from stationary sources. Beginning January 2nd, the GHG Tailoring Rule permitting requirements will apply for large facilities already permitted as major sources under the Clean Air Act for non-GHG pollutants, such as sulphur dioxide and nitrogen oxides. These facilities will have to account for GHGs in their applications if they increase GHG emissions by at least 75,000 tons of carbon dioxide equivalent a year.  Subsequent regulatory triggers apply in the future under the GHG Tailoring Rule. Effective July 1, 2011, the GHG Tailoring Rule will extend to all new facilities with GHG emissions of at least 100,000 tons a year and modifications at existing facilities that increase GHG emissions by at least 75,000 tons a year. EPA said last week in a statement that the results of these new expedited rulemakings would be temporary measures in place until states revise their SIPs and assume responsibility for GHG permitting. EPA is expediting its rulemaking process to ensure the rules are finalized before the January 2nd start. A public hearing has been scheduled on its proposals for August 25th and EPA will accept written public comments over the next 30 days.

Carbon Emissions | Climate Change | Greenhouse Gases

EPA Denies Petitions for Review of Endangerment Finding

August 13, 2010 14:47
The U.S. Environmental Protection Agency Friday denied 10 petitions for reconsideration of its Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act. Led by the Chamber of Commerce of the United States of America, the petitions sought to put the brakes on EPA’s regulatory steps that would serve as the trigger for classifying greenhouse gas (GHG) emissions as pollutants under the Clean Air Act.  Although Section 202(a) covers exhaust from new motor vehicles, regulating GHGs in this context has far broader implications because other sections of the Clean Air Act use the same definition of “pollutant” and the regulatory findings, if allowed to stand, will trigger broader consequences for stationary sources like major power plants, industrial boilers and cement kilns.  (EPA’s original findings can be found in the December 15, 2009 Federal Register at 74 FR 66496). In denying the petitions to reconsider its findings, EPA said that petitioners’ arguments and evidence are inadequate, generally unscientific, and do not show that the underlying science supporting the Endangerment Finding is flawed, misinterpreted by EPA, or inappropriately applied by EPA.  The denial can be found in the August 13th Federal Register at 75 FR 49556 and a 3-volume, 360-page compendium supporting EPA’s denials can be found at Citing widely-reported e-mails from the United Kingdom-based Climatic Research Unit of the Intergovernmental Panel on Climate Change questioning the climate science, the petitioners argued that recent revelations show that the science supporting the EPA’s findings was flawed or questionable, and that EPA should reconsider the Endangerment Finding. EPA replied that the petitioners’ claims and supporting information do not change or undermine the scientific understanding of how anthropogenic emissions of GHGs cause climate change and how human-induced climate change generates risks and impacts to public health and welfare.  “This understanding has been decades in the making and has become more clear over time with the accumulation of evidence,” EPA wrote in response. “The core defect in petitioners’ arguments is that these arguments are not based on consideration of the body of scientific evidence.  Petitioners fail to address the breadth and depth of the scientific evidence and instead rely on an assumption of inaccuracy in the science . . .,” said EPA. EPA’s response to the petitions shows that EPA remains committed to pursuing regulatory changes that address climate change even as global warming legislation continues to stall in the Congress.

Climate Change | Green Buildings | Greenhouse Gases


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