Climate Change Blog | McCarter & English

The Top 6 at 6: A Review of the Most Important Climate Change Legal Stories in the First Half of 2012

June 30, 2012 21:01
by J. Wylie Donald
Arbitrary and capricious.  Familiar words to anyone involved in regulatory activity.  But also applicable to calendars, which willy-nilly cut off a series of events and ascribe them to one solar cycle, as if the sun gave two hoots.  As we perused the various "Climate Change: Year in Review" reviews that crossed our desk last January, we concluded 365 days are arbitrary and one year capricious in assessing what is important to resurrect and re-discuss.  We further concluded that a 12-month look-back is too long.  So, for what it is worth, here is one of six months....

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases | Insurance | Legislation | Regulation | Year in Review

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 Unde...

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

Rio+20 Disappoints But Does Renewable Energy Need an International Treaty to Move Forward?

June 23, 2012 14:34
by J. Wylie Donald
Rio+20 wrapped up yesterday.  The moniker derives from the twentieth anniversary of the Earth Summit, the 1992 United Nations Conference on Sustainable Development, which was held in Rio de Janeiro.  This reprise was billed as “an historic opportunity to define pathways to a safer, more equitable, cleaner, greener and more prosperous world for all.”  The conferees focused on two themes:  “How to build a green economy to achieve sustainable development and lift people out of poverty, ... and how to improve international coordination for sustainabl...

Climate Change | Legislation | Renewable Energy | Solar Energy | Sustainability

The CUNY Solar Summit: Will the Big Apple Become the Big PV Cell?

June 9, 2012 19:48
by J. Wylie Donald
"Now I'm as excited about renewables as anybody. But they're a niche play."  We excerpt this from a terrific interview of Southern Company CEO Tom Fanning by Joseph Rago of the Wall Street Journal (The Natural Gas Skeptic, WSJ, June 9-10, 2012).  It resonated because we spent all day Thursday at the Solar Summit sponsored by City University of New York. New York City is jumping into solar power with both feet, head over heels and at a fever pitch.  It is no longer just the Big Apple.  If NYC has its way, it will be the Big PV Cell as well.  You have that right.  T...

Opening Day: CAT Bonds, Climate Change and the 2012 Hurricane Season

May 31, 2012 20:54
by J. Wylie Donald
Tomorrow is June 1,  the official start of the Atlantic Hurricane Season, which is predicted by NOAA to be near normal. It comes almost as an afterthought this year because already we have had two named storms.  In mid-May Tropical Storm Alberto appeared and quickly disappeared.  It was followed shortly after by Tropical Storm Beryl, which made landfall at Jacksonville, Florida with record winds for a May storm.   Some undoubtedly have the view that the season's early arrival is further evidence of climate change.  That conclusion may be premature. ...

Climate Change | Insurance | Regulation | Weather

Clash of the (Electric Vehicle Charging Station) Titans: ECOtality v. NRG

May 27, 2012 21:29
by J. Wylie Donald
What do you get when the beneficiary of “the largest public/private federal transportation electrification grant provided by the U.S. Department of Energy” concludes that “one of the country’s largest power generation and retail electricity businesses” is not playing fair?  What you get is quite an interesting lawsuit filed in the California Court of Appeal.  See ECOtality, Inc. v. California Public Utilities Comm’n, et al., Verified Petition for Writ of Mandate (attached).  ECOtality, the project manager of The EV Project, filed suit last Fri...

Regulation | Sustainability | Utilities

Force Placed Insurance When the Flood Plain Fails to Consider Climate Change

May 8, 2012 19:22
by J. Wylie Donald
An interesting case crossed our desk last week from the Texas Court of Appeals. The amount at issue, $4,410.69, belies its significance. In Alvarado v. Lexington Insurance Company, Nos. 01-10-00740-CV, 01-10-01150-CV, slip op. (Tex. Ct. App. 1st Dist. Apr. 19, 2012) (attached), the court thoroughly examined (with extensive citations) the issue of whether a homeowner, subject to "force placed" insurance, has any rights in the policy obtained by his lender.  The majority concluded that the terms of the policy established that the homeowner was an intended beneficiary and could claim under t...

Climate Change | Climate Change Effects | Flood Insurance

Virginia Supreme Court Stands Firm on Rehearing Climate Change Insurance Case: AES v. Steadfast is (Re-) Affirmed

April 20, 2012 14:12
by J. Wylie Donald
The Virginia Supreme Court surprised us today.  It issued its opinion (attached) on rehearing in AES Corp. v. Steadfast Insurance Co., hardly changed from its original decision finding that the allegations in Native Village of Kivalina v. ExxonMobil Corp. did not constitute an occurrence.  The concurrence, however, is substantially altered, and it is there that one can get a taste of the mischief to which this decision may lead. We have blogged this subject on several occasions.  In a nutshell, AES sought coverage for climate change liability claims asserted by claimant In...

Carbon Emissions | Climate Change Litigation | Insurance

Travails of A123, Fisker and Ener1 Don't UnPlug Nissan CEO Ghosn at New York Auto Show

April 5, 2012 07:05
by J. Wylie Donald
 Imagine an industry.  Let’s make it a high technology industry.  And we’ll make it risky.  It will be a new technology, linked to other new technologies.  We’ll have over a dozen companies in this industry and some of them will partner with their suppliers or their customers, just as established industries do.  And just because it is new technology doesn’t mean that old issues don’t matter.  Each company will still have to satisfy investor expectations, raise money, hope demand stays ahead of supply, beat out their competition (...

Carbon Dioxide | Sustainability

A Primer on How Regulation of Greenhouse Gases Coming out of a Tailpipe Led to Regulation of Greenhouse Gases Coming out of a Stack

March 29, 2012 21:38
by J. Wylie Donald
Tuesday EPA issued its proposed rule (see related post) concerning new source performance standards for greenhouse gas emissions for electric power plants.  This all started when EPA refused to address greenhouse gas emissions coming out of cars.  Cars to power plants.  Some may be wondering how the camel got into this tent. The story begins of course with Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court held that greenhouse gases emitted in automobile exhaust were "air pollutants" within the meaning of the Clean Air Act.  This meant that EPA had to ...

Carbon Dioxide | Carbon Emissions | Regulation

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