Cross-posted from Legal Planet.
Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012.
Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case that the Supreme Court has agreed to hear. The odds are good that the Court will throw out the case, the interesting question being what ground the Court will choose. It would be very surprising if the Justices relied on the political question, which the trial courts have favored. The easiest basis for dismissal would be that the federal common law of nuisance is preempted by EPA’s actions under the Clean Air Act, but there will surely be a number of Justices who want to dismiss the case on the basis of standing. The question there is whether Justice Kennedy finds this case distinguishable in terms of standing from Massachusetts v. EPA, where he joined the majority ruling in favor of standing.
Predictions are very chancy regarding the votes of individual Justices, but my prediction is that there will be four votes to dismiss the case on the basis of standing (all the dissenters in Mass. v. EPA); very few if any votes to invoke the political question doctrine; and at least one or two votes (most likely Kennedy and Breyer or Kagan) to dismiss on the basis that the federal common law of nuisance has been preempted.
Although AEP will have symbolic importance and could have some interesting legal implications, it won’t have much practical impact — I don’t think the plaintiffs ever had much of a chance of getting an actual remedy anyway given the enormous factual complexities.
Full textThe environment received an early Christmas present from the Environmental Protection Agency yesterday, with EPA’s announcement that it would propose New Source Performance Standards (NSPSs) for greenhouse gas (GHG) emissions from power plants and refineries in 2011, and then finalize the regulations in 2012. The decision resolves a lawsuit brought by states, local governments, and environmental groups. EPA’s initiative will impose cost-effective controls on stationary sources of GHGs, and complement the agency’s existing initiatives for mobile and stationary sources of GHGs. While the CAA might not be as flexible or comprehensive as recently proposed congressional GHG legislation, EPA is making sorely needed progress to control the nation’s GHG emissions.
Notwithstanding industry’s ongoing criticism of applying the CAA to GHGs, the initiative is hardly a surprise. The Supreme Court made clear in its 2007 Massachusetts v. EPA decision that GHGs are “air pollutants” subject to the Clean Air Act (CAA). As such, EPA has unquestionable authority to regulate GHG emissions from stationary sources, and has decided to develop NSPSs for two of the nation’s largest industrial sources. According to EPA, fossil fuel power plants and petroleum refineries emit 40 percent of U.S. GHG emissions.
The NSPS requirement will establish industry-specific emission limitations for new and modified facilities in the affected industries. The emission limitations will take the cost and availability of control options into account. Although utilities have feared that EPA would require them to install expensive carbon capture and sequestration (CCS) technology, EPA is unlikely to require CCS given its high cost and lack of demonstrated success. In fact, since there are few, if any, demonstrated technologies that could otherwise remove GHGs from the emissions stream, EPA is most likely to impose measures that would increase the facilities’ energy efficiency and indirectly limit GHG emissions. While such measures could require initial capital expenditures, they could ultimately provide cost savings to the affected industries, just as installing a new and more efficient furnace in a home would cost money up front, but save money down the line. It is also conceivable that EPA would require a new or modified facility to switch from a more GHG-intensive fuel (like coal) to a less GHG-intensive fuel (like natural gas). A NSPS that required fuel-switching would be more controversial, but would likely achieve greater GHG emission reductions.
Full textA federal appeals court's decision on Friday refusing to block implementation of EPA’s first limits on carbon pollution from cars, power plants, and factories is good news for inhabitants of planet Earth. A coalition of industry groups, right wing think tanks, and the state of Texas had asked the court to grant a stay blocking EPA’s rules from going into effect while their litigation challenging those rules goes forward. But a three-judge panel of the D.C. Circuit Court of Appeals (including two very conservative republican appointees) wisely rejected that request.
All this started back in 2007, when the U.S. Supreme Court overturned the Bush EPA’s feckless efforts to avoid regulating greenhouse gases as air pollutants under the Clean Air Act. Nearly four years later, Obama’s EPA has finally taken the first baby steps toward fulfilling its obligations under the Clean Air Act to regulate carbon dioxide and the other emissions that cause global warming. Starting January 2, 2011, certain big new and expanded power plants and other large industrial facilities will have to meet fuel efficiency standards along with the other conventional pollution control requirements. And the average fuel economy standard for new cars and trucks will increase modestly to 29.7 miles per gallon for 2012 model year vehicles.
This is not some radical new regulatory program issued by a rogue agency intent on paralyzing American industry and running the economy into the ground, as the folks challenging them would have you believe. These are modest and incremental steps that move us just a little closer toward catching up with the rest of the world with respect to the common sense goal of energy efficiency.
Full textCross-posted from Legal Planet.
On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals. It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.
The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:
Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather than speculative, or that the “alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).
The challengers did win a partial victory, however, because the court agreed to consolidate all of the various challenges before the same panel. However, consolidation will mean even longer delays as the three judges struggle with thousands of pages of briefs and records.
The Supreme Court could reverse the stay denial, but that seems highly unlikely given that the order was joined by two very conservative judges (Ginsburg and Brown).
Full textThe environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action.
In AEP, Connecticut, along with several other states and public interest organizations, brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs sought injunctive relief in the form of emissions limits on the utilities’ facilities. In 2005, the district court held that applying public nuisance law to the problem of climate change presented a nonjusticiable political question, and dismissed the case. In 2009, the Second Circuit reversed, re-opening the courthouse door to climate nuisance cases.
Here's a look at several of the key legal issues presented by the case.
Political Question Doctrine: In this and other climate nuisance cases, the political question doctrine has been the preferred vehicle through which district courts have dismissed the cases. (See also Comer v. Murphy Oil Co. and Kivalina) The Second Circuit rejected this approach. The first key issue under the political question doctrine is whether the matter is textually committed to one of the political branches (the elected branches). On this prong, the Second Circuit stated strongly that: “In this common law nuisance case, ‘[t]he department to whom this issue has been ‘constitutionally committed’ is none other than our own – the Judiciary.”
Full textThe Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution.
AEP is the first climate change nuisance suit to reach the Supreme Court, but it is only one of several that have been initially dismissed by district court judges who seem all too eager to avoid these controversial and boundary-straining suits.
The problems with these dismissals are two-fold. First, to the extent that judges are worried about stretching tort law to reach the mother of all collective action problems – global climate change – their concerns are grossly overstated. Numerous avenues exist within the substantive law of tort itself to avoid finding defendants liable for their contributions to climate change (see my recent paper outlining these avenues here). Second, to the extent that judges erect preliminary barriers that deprive courts of the opportunity to engage with climate change tort claims on the merits, they abdicate a traditional role that lies at the very heart of our system of limited government. Tort law is a residual locus for the airing of grievances when no other government actor is responsive to societal need. Unlike legislators and executive branch officials, judges have to give an answer when a claim of wrongful harm is brought to their attention. Using slippery and seemingly unprincipled doctrines like standing and political question to avoid that responsibility works to short-circuit a fundamental node in our system of divided and overlapping governmental power.
Full textUpdate: EPA and NHTSA have issued the Supplemental Notice of Intent.
The regulatory process is often complex: agencies must balance opportunities for public comment, complex scientific information, and economic analysis, all while trying to craft a program that fulfills a legal mandate. But when it comes to crafting proposals for vehicle fuel economy and greenhouse gas standards, the process has become an administrative nightmare.
In May, President Obama announced plans for the EPA and National Highway Traffic Safety Administration (NHTSA) to propose fuel economy standards for 2017-2025. Last week, EPA and NHTSA sent a supplemental notice of intent to propose fuel economy standards to OMB's Office of Information and Regulatory Affairs (OIRA) for review. OIRA has 90 days to review the document, but it is expected to be released in the coming weeks.
The document is the third official statement of policy to come from the Obama administration in advance of a proposed rule for light duty (cars, minivans, SUVs, pickup trucks) vehicle efficiency standards expected in September 2011. EPA says the document, not publicly available, promises to make incremental steps toward proposing standards, including “narrow[ing] the range of potential stringencies” for the upcoming proposed regulation.
Full textLast week the EPA released its “PSD and Title V Permitting Guidance For Greenhouse Gases.” This Guidance was designed to give the states direction in how to implement permitting requirements for new sources for other criteria pollutants that also produce greenhouse gases on January 2, 2011, and new sources of greenhouse gases following in May, 2011, under the Clean Air Act’s Prevention of Significant Deterioration Program.
The Guidance does an excellent job of summarizing and explaining how the EPA’s current PSD permitting program works (it is the best succinct and correct explanation I have seen), and explains how the procedure applies with the addition of greenhouse gases to the list. Importantly, it reaffirms the current five-step standard for determining what is “Best Available Control Technology” under the PSD program. The Guidance first advises permitting authorities in making an applicability determination based on whether there is an emissions increase under the complex regulatory formulae (and subject to the de minimis current requirements and the new ones for greenhouse gases). Then the Guidance moves on to the five-step process, which requires the permitting authority to evaluate what the best processes are for reduction, rank them in order, then evaluate them one by one for excessive environment, energy, or economic cost until one is deemed sufficient to implement for the BACT.
The Guidance goes on to suggest that energy efficiency is certainly likely to be the most promising BACT for most greenhouse gas producers. The EPA suggests that permitting authorities who require energy efficiency initiatives look at design features as well as end-of-pipe requirements, and favorably comments on more efficient boiler designs such as boilers with supercritical and ultra-supercritical steam pressures. Importantly, the agency does not endorse fuel switching as a BACT for coal fired power plants, though neither does it rule it out, leaving the possibility open for states to require it.
Full textAs “Cap-and-Trade Is Dead” continues to echo through the empty halls of Congress, California rolled out its proposed greenhouse gas (GHG) cap-and-trade program on Friday. The proposed regulations send a powerful message that, notwithstanding political paralysis at the federal level, the states are proceeding with meaningful climate action.
The proposed cap-and-trade program, to be voted on by the California Air Resources Board (CARB) at its December 2010 meeting, is scheduled to take effect in January 2012. At the outset, it will apply to the state’s large stationary sources, including manufacturing and utilities. Beginning in 2015, the program will also cover fuel distributors, including distributors of transportation fuels and natural gas or propane not covered by the program’s earlier phase.
The cap-and-trade program is just one of many emissions reduction strategies outlined in California’s scoping plan, the planning document that guides the state’s implementation of AB 32, its primary climate law. (Other strategies include vehicle emissions standards, a renewable portfolio standard, building and appliance efficiency standards, an electricity performance standard for utilities, and a host of other measures.) The cap-and-trade program nonetheless has far-reaching significance because it sets an actual cap on 85% of the state’s emissions. Although the state’s many climate strategies are all designed to reduce emissions, their actual results are uncertain, and the cap will help the state meet its specific target.
Full textOver at Grist, CPR Member Scholar Frank Ackerman explains why the economic calculations used by the Yes on 23 campaign in California are rather fishy.
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