By Peter Ross

For decades, federal energy and water efficiency standards have demonstrably saved consumers money, reduced pollution, and increased grid reliability.  The U.S. Department of Energy (“DOE”) periodically reviews standards and test procedures for more than 60 products, representing about 90% of home energy use, 60% of commercial building energy use, and 30% of industrial energy use.  Due in part to their incremental nature, these standards have been relatively uncontroversial and often result from  lengthy stakeholder negotiations between manufacturers seeking regulatory certainty and environmental advocates seeking greater efficiency.

In recent months, however, these standards have become the subject of increased litigation.  In June, advocacy groups and a coalition of State Attorneys General sued the DOE for refusing to publish several all-but-finished efficiency standards in the Federal Register.  When DOE delayed the effective date of an energy standard for ceiling fans, a similar group of state actors petitioned the Second Circuit Court of Appeals to review the agency’s action.  To protect their states’ interests in energy efficiency, yet another coalition of State Attorneys General intervened in an industry group lawsuit against the DOE challenging certain federal lightbulb efficiency standards.

While DOE has acceded to some of the states’ demands, allowing the ceiling fan rule to go through with the original compliance date along with a standard for walk-in coolers, Washington’s commitment to increased energy efficiency remains shaky.  In addition to dragging its feet in implementing certain standards, the Trump Administration has proposed budget cuts to the parts of DOE responsible for administering the appliance and equipment standards program.  States thus should prepare to utilize all policy tools at their disposal to promote energy efficiency during the next four years.

To that end, a new working paper, Appliance and Equipment Efficiency Standards: A Roadmap for State and Local Action, examines how the Energy Policy and Conversation Act (“EPCA”), and the DOE regulations promulgated thereunder, place limits on the ability of states and cities to outlaw the use of inefficient appliances and equipment.  It surveys existing state efficiency laws that cover products beyond federal jurisdiction, and discusses several steps states can take to advance appliance and equipment efficiency including: (i) seeking EPCA waivers from DOE to create and enforce statewide standards for federally covered products (and, if necessary, litigating the rejection of any such waiver petition); (ii) regulating non-federally covered products such as computers; (iii) encouraging the use of more efficient appliances and equipment through local building codes for new construction; and (iv) revising procurement laws to require the use of products that exceed federal efficiency standards.

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By Michael Burger

Yesterday, three local governments in California (San Mateo County, Marin County and the City of Imperial Beach) filed potentially groundbreaking climate change lawsuits in California state courts, each one charging a group of 20 fossil fuel companies with liability for public nuisance, failure to warn, design defect, private nuisance, negligence, and trespass. (The complaints will be available in an updated version of this post as soon as we have them available.) This type of state common law climate litigation has been a long time coming, and these cases may well represent the first of a slew of similar cases nationwide. Here, I summarize several interesting aspects of the complaints, and offer some first blush thoughts on both the legal hurdles they might face and the potential outcomes they might produce.

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By Romany Webb

There has been much talk in recent weeks about the regulation of methane emissions from oil and gas operations. Environmentalists and others have come out in force against the Trump Administration’s rollback of Obama-era methane regulations, arguing that retention of the regulations is vital to ensure oil and gas operations are conducted safely and with minimal environmental impacts. Despite this, however, both the Environmental Protection Agency (“EPA”) and Bureau of Land Management have recently announced plans to reconsider existing regulations. Both agencies have sought to delay implementation of the regulations pending reconsideration, but are facing court challenges from states and green groups. One of those challenges has already been upheld, with the U.S. Court of Appeals for the District of Columbia Circuit ruling that EPA cannot implement a three-month stay of its regulations targeting new oil and gas facilities. (The Court subsequently allowed EPA to delay its regulations for 14 days while it considers whether to appeal the ruling.)

Challenging the Trump Administration’s deregulatory agenda is vital to prevent any backward movement on methane regulation. However, to effectively address methane emissions, advocates must also push for further regulation, particularly at the state level. State regulators can, for example, play an important role in controlling methane emissions from the gas transportation system. That system, which consists of the network of pipes used to move gas from production sites to customer premises, currently accounts for roughly 7 percent of national methane emissions. Most of these emissions are due to the leakage of gas, which is comprised principally of methane, from damaged and/or aging pipelines. (More information on the cause of leaks is provided in my previous post here.) This not only results in the waste of a valuable resource, but also poses a serious threat to public safety and the environment.

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July 2017 Updates to the Climate Case Charts


Posted on July 6th, 2017 by Tiffany Challe

Each month, Arnold & Porter Kaye Scholer LLP (APKS) and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

In June, the Sabin Center, in collaboration with APKS, officially launched a new version of the climate litigation charts at http://climatecasechart.com. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 99.

FEATURED CASE

D.C. Circuit Vacated EPA’s Administrative Stay of Methane Standards for Oil and Gas Facilities

A divided D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (EPA) lacked authority to administratively stay portions of new source performance standards for the oil and gas sector for which it had granted requests for reconsideration. The stayed aspects of the standards related to fugitive emissions requirements, alternative means of compliance, standards for pneumatic pumps at well sites, and requirements for certification by a professional engineer. The D.C. Circuit concluded that the administrative stay constituted reviewable final agency action because it was consummation of EPA’s decision-making process with respect to the standards’ effective date even though EPA’s underlying decision to reconsider portions of the standards would not by itself be subject to review. The D.C. Circuit also rejected EPA’s argument that the court did not have authority to review stays issued under Section 307(d)(7)(D) of the Clean Air Act. The court said the statutory language authorized courts to grant stays and that EPA’s reading of the statute “would have the perverse result of empowering this court to act when the agency denies a stay but not when it chooses to grant one.” The D.C. Circuit further concluded that Section 307(d)(7)(B) expressly linked EPA’s power to stay to regulatory provisions meeting the requirements for “mandatory reconsideration”—that it was “impracticable to raise” an objection during the public comment period and that the objection was “of central relevance to the outcome of the rule.” The D.C. Circuit concluded that EPA had acted arbitrarily and capriciously in determining that the four elements of the regulations that had been stayed met these requirements. The court said the administrative record “makes clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration.” The court therefore found that the stay was unauthorized and vacated it. (The D.C. Circuit also rejected EPA’s argument that it had inherent authority outside of Section 307(d)(7)(B) to issue the stay.) The court emphasized, however, that even though EPA did not have an obligation to reconsider the four provisions, “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule … as long as ‘the new policy is permissible under the statute … , there are good reasons for it, and … the agency believes it to be better.’ ” Judge Brown wrote a dissenting opinion, indicating that she believed the stay did not constitute final agency action because it did not represent “consummation of the agency’s decision-making process” and because it did not “impose legal or practical requirements on anyone,” noting that EPA was not compelling compliance and that “[i]f a regulated entity wants to comport its conduct to the requirements of the stayed rule, it is free to do so.” (The majority responded to this latter point by saying that “[t]he dissent’s view is akin to saying that incurring a debt has legal consequences, but forgiving one does not. A debtor would beg to differ.”)

A number of different parties had lined up on either side of the issue of whether EPA’s stay was lawful. Six environmental groups launched the proceeding challenging the stay after EPA published notice of the stay in the June 5, 2017 issue of the Federal Register. Thirteen states, the District of Columbia, and the City of Chicago sought leave to intervene on behalf of the petitioners. These potential intervenors alleged that the additional emissions during the stay period would harm their interest in protecting their residents from the effects of air pollution and climate change. Colorado separately sought leave to intervene in support of the petitioners, noting that it had already undertaken significant steps to control ozone-forming pollutants and methane from oil and gas sources and also contending that the stay would “concretely and negatively” affect Colorado’s interests in, among other things, protecting its citizens from air pollution and climate change. Eleven states or state agencies or officials sought to intervene on EPA’s behalf, as did oil and gas trade groups and a number of independent oil and gas producers, who argued that the stay did not constitute reviewable final agency action. Two other states—Texas and North Dakota—filed an amicus brief supporting EPA; the petitioners opposed their participation on procedural grounds. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir., filed June 5, 2017; emergency motion for stay granted July 3, 2017).

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Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the U.S. by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified.

Michael Gerrard has written an article, “Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity,” discussing the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed.

The article has just appeared in the Environmental Law Reporter.  It is excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018).  It is linked here.

 

UN Body Finds That Human Rights Treaty Requires Climate Action


Posted on June 30th, 2017 by Romany Webb
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By Jessica Wentz

On June 23 the United Nations Committee on Economic, Social and Cultural Rights issued a statement recognizing that the failure to take adequate action on climate change may rise to a violation of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee, a body of independent experts that monitors compliance with the ICESR for the UN Economic and Social Council, made the following observations and recommendations during its review of Australia’s implementation of the treaty:

The Committee is concerned about the continued increase of CO2 emissions in the State party, at risk of worsening in the coming years, despite the State party’s commitments as a developed country under the UN Framework Convention on Climate Change and the Kyoto Protocol, as well as its Nationally Determined Contribution under the Paris Agreement. The Committee is also concerned that environmental protection has decreased in recent years as shown by the repeal of the Emissions Trading Scheme in 2013, and the State party’s ongoing support to new coal mines and coal-fired power stations. The Committee is also concerned that climate change is disproportionately affecting the enjoyment of Covenant rights by indigenous peoples.

The Committee recommends that the State party revise its climate change and energy policies, as indicated during the dialogue. It recommends that the State party take immediate measures aimed at reversing the current trend of increasing absolute emissions of greenhouse gases, and pursue alternative and renewable energy production. The Committee also encourages the State party to review its position in support of coal mines and coal export. The Committee further recommends that the State party address the impact of climate change on indigenous peoples more effectively while fully engaging indigenous peoples in related policy and programme design and implementation.

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by Justin Gundlach

A new working paper from the Sabin Center adds to discussions currently swirling around the prospect of a federal carbon tax. The paper–part of a larger project underway at the Columbia University Center for Global Energy Policy–shines light on a set of practical considerations that other analyses have ignored, namely how existing policies could (and should) feature in negotiations over various parameters of the tax. Would a carbon tax make CAFE standards redundant? What about energy efficiency standards? If not, how do these existing policies relate to a prospective tax, and what might that mean for negotiations toward the tax’s adoption? The paper offers answers to questions like these.

But why discuss this now, given that a carbon tax is at odds with the Trump Administration’s goal of “energy dominance”?

While the Trump Administration has loudly sought to ignore climate change and accelerate the rates of domestic fossil fuel extraction and consumption, a critical mass of U.S. policymakers, researchers, and business leaders has quietly turned its attention to the need to mitigate climate change by pricing carbon dioxide emissions from U.S. sources. Because this constituency’s significance and longevity exceed those of the Trump Administration, it seems that, sooner or later, the federal government will assign a price to carbon dioxide emissions. And because there is no other legally viable way to do so, it seems that such pricing will be enacted via legislation. The contents of that legislation will reflect negotiated agreement—built on various political tradeoffs—over a host of policy issues, ranging from taxes to energy efficiency standards. These tradeoffs would implicate not only the scope and price assigned to carbon, but also the policies with which the pricing scheme would interact.

Against this backdrop, To Negotiate a Carbon Tax: A Rough Map of Policy Interactions, Tradeoffs, and Risks describes interactions between such a price (assumed to take the form of a tax) and various existing and proposed policies relating to climate change, energy, and environmental protection. Specifically, it proposes a typology for those interactions and applies it to characterize particular policies. It also notes how trading off particular policies for a more robust carbon tax could undermine the climate change mitigation goal of such a tax.

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By Rosette Zarzar and Romany Webb

On Friday June 9, Representatives Carlos Curbelo (R-FL) and Marc Veasey (D-TX) proposed a bipartisan bill, aimed at supporting the development of new technologies to address natural gas pipeline leaks. The bill would provide $225 million for research on leak control technologies to, in the words of Rep. Veasey, “chip away at the high costs and current limits of [such] technologies.” While this is a laudable aim, in most cases, new technologies are not required to find and fix pipeline leaks. The vast majority of leaks are known to originate from aging pipelines, made of cast iron or bare steel, and can be easily eliminated by replacing those lines with newer plastic ones.

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The Sabin Center for Climate Change Law, in collaboration with Arnold & Porter Kaye Scholer LLP (APKS), has officially launched a new version of its climate litigation charts at http://climatecasechart.com. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.

The new website provides a platform both for the U.S. climate litigation chart (a joint project of the Sabin Center and APKS) and for the non-U.S. litigation chart. The U.S. chart, created in 2007, tracks developments in domestic litigation and administrative proceedings related to climate change. It currently includes more than 700 cases with links to more than 2,000 case documents. Cases in the U.S. database are organized by type of claim and may be filtered by the principal laws they address, their filing years, and their jurisdictions. The database is also term searchable.

The non-U.S. climate litigation chart was created in 2011 and currently includes 236 cases, with links to 205 case documents. The chart exists independently of, and serves as a direct source of information for the Climate Change Laws of the World website, a joint project between the Sabin Center and the Grantham Institute at the London School of Economics.

If you would like to receive a monthly newsletter that includes updates to the climate litigation charts as well as other Sabin Center publications and information, you can subscribe here.

 

 

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By Michael Burger and Nadra Rahman

Last week, Interior Secretary Ryan Zinke submitted an interim report on his review of national monuments designated under the Antiquities Act of 1906, focusing in particular on the 1.35 million acre Bears Ears National Monument in Utah, which President Obama established on December 28, 2016. This week, Zinke has gone on the record with his emerging public lands policy, the key concept being that extracting fossil fuels from federal lands can lead to “energy dominance” (a Trumpist take on “energy independence”) and reduce the “social cost of not having jobs” (a not-so-clever play on the “social cost of carbon”). Curiously, Zinke is failing to connect the dots between his review of national monuments and his pro-extraction goals. This post will do the work for him.

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