Energy & Environmental Law Blog : Energy & Environmental Lawyer & Attorney : Vorys, Sater, Seymour and Pease Law Firm : Oil, Gas & Green Technology

U.S. EPA has issued a proposed rule on the confidentiality determinations it believes are appropriate for the data and information submitted as part of a company's compliance with its Mandatory Greenhouse Gas Reporting Rule obligations.  Among other things, "EPA is soliciting comment on several key issues related to the confidentiality determinations and proposed amendments, such as whether the proposed data categories are appropriate and reasonable, whether there are unique circumstances that would warrant a limited process for a facility to seek reconsideration of a final determination of non-confidential status when it submits its information, whether alternative interpretations of emission data would be appropriate, and whether there are any approaches for delaying publication of data elements that would ease potential concerns by industry while enabling EPA to meet our obligations under FOIA and CAA."

Comments are due September 7, 2010.

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U.S. EPA has issued a final rule for the mandatory reporting of greenhouse gases from four additional sources:  magnesium production, underground coal mines, industrial wastewater treatment, and industrial waste landfills.

Moreover (from the press release):  "In a separate proposed rule, EPA is requesting public comment on which industry related GHG information would be made publicly available and which would be considered confidential. Under the Clean Air Act, all emission data are public. Some non-emission data, however, may be considered confidential, because it relates to specific information which, if made public, could harm a business’s competitiveness."  (Emphasis is ours.)  For more on that rule, see here.

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On June 3, 2010, the USEPA issued its final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 31,514).  On the very same day, a legal foundation, House Republicans, businesses and business organizations sued the EPA saying EPA does not have the authority to issue the new rule.

The tailoring rule phases the applicability criteria to determine which stationary sources become subject to GHG emission permitting requirements under PSD and Title V Clean Air Act programs.

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The Department of Transportation and U.S. EPA have issued a final joint rulemaking setting the nation's first greenhouse gas emission standards, and new stringent fuel-economy standards, for 2012 through 2016 model-year vehicles.  "They require these vehicles to meet an estimated combined average emissions level of 250 grams of carbon dioxide per mile, equivalent to 35.5 miles per gallon (MPG) if the automobile industry were to meet this carbon dioxide level solely through fuel economy improvements. Together, these standards will cut greenhouse gas emissions by an estimated 960 million metric tons and 1.8 billion barrels of oil over the lifetime of the vehicles sold under the program (model years 2012-2016)."

For more, see here.

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U.S. EPA has announced that stationary sources will not be required to get permits under the Clean Air Act (CAA) for greenhouse gases (GHGs) until at least January 2011.  "Today’s action determines that Clean Air Act construction and operating permit requirements for the largest emitting facilities will begin when the first national rule controlling GHGs takes effect. If finalized as proposed, the rule limiting GHG emissions for cars and light trucks would trigger these requirements in January 2011 – the earliest model year 2012 vehicles meeting the standards can be sold in the United States. The agency expects to issue final vehicle GHG standards shortly."

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Senator Rockefeller (D-WV) has introduced legislation to delay action by U.S. EPA on greenhouse gas regulation for stationary sources for a period of two years, according to this press release from the Senator's office.  "The legislation directs that for two years after enactment the EPA can take no regulatory action and that no stationary source shall be subject to any requirement to obtain a permit or meet a New Source Performance Standard under the Clean Air Act with respect to carbon dioxide or methane, except for the widely-supported motor vehicle emission standards."

The press release provides a link to the proposed legislation.

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The Southeastern Legal Foundation has filed suit, together with more than a dozen U.S. representatives and nearly two dozen associations, to challenge U.S. EPA's efforts to regulate carbon dioxide as a pollutant under the Clean Air Act (i.e., EPA's related "Endangerment Finding"), according to this opinion piece in the Washington Examiner.

A copy of the petition, and related materials, can be found here.

[Update:  Texas is filing suit too, according to this article in the Houston Chronicle.  (Moved up.)  And more here from the NYT (note the "skeptic" pejoratives).]

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President Obama signed an Executive Order yesterday "that sets sustainability goals for Federal agencies and focuses on making improvements in their environmental, energy and economic performance."  The stated goal is to lead by example with some deadlines requiring initial action by governmental agencies within 90 days.

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US EPA announced today that beginning January 1, 2010, large sources of greenhouse gas (GHG) emissions will be required to collect and report GHG emission data. These first reports, covering calendar year 2010, are to be submitted to US EPA in 2011. GHG reporting will be phased in for vehicle and engine manufactures (outside of the light-duty sector) beginning with model year 2011.

US EPA issued a proposed GHG Reporting Rule in April 2009. The public comment period for this rule expired on June 9, 2009. US EPA has indicated that GHG reporting requirements for some sources identified in the proposed are still under review.

 A copy of US EPA’s announcement can be viewed here.

We will continue to monitor US EPA’s activities and provide updates on the GHG Reporting rule as they become available.

[Update: Under the final rule, covered entities can cease reporting through reductions in GHG emissions. Additionally, US EPA reduced the number of source and supply categories initially subject to the mandatory reporting requirement - deferring final action on oil and gas systems, for example.

More information on the Final Rule may be found here.]

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U.S. EPA and the Department of Transportation’s National Highway Safety Administration (NHTSA) have proposed a National Program intended to reduce greenhouse gas emissions and improve fuel economy for new cars and trucks sold in the United States.  Applicable to model years 2012 through 2016, the new standards would require an estimated average emissions level of 250 grams of carbon dioxide per mile (equivalent to 35.5 miles per gallon) and, if successful, would reduce carbon dioxide emissions by an estimated 950 million metric tons over the lifetime of the vehicles sold.

More on the program can be found here.

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As Congress considers the nation's first cap-and-trade legislation, California regulators are thinking about imposing the nation's first fee on carbon dioxide emitters as a means of funding the state's greenhouse gas emissions law, according to this article in the Mercury News.  If adopted, it would raise approximately $50 million annually to fund the regulatory program.

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This article from the NYT reports on a study commissioned by the American Petroleum Institute (API) finding that the U.S. oil and gas industry invested $58.4 billion over the past 8 years in greenhouse gas-mitigating technologies, while the federal government invested only $19.2 billion over the same period.  Not bad.

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This article in the NYT reports on how cap-and-trade became the mechanism of choice in Congress for addressing greenhouse gas emissions.  Clinton-era politics played a significant role.

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U.S. EPA has scheduled the first of two public hearing on its proposed greenhouse gas endangerment finding for next Monday, May 18, 2009, from 9:00 a.m. to 8:00 p.m. in Arlington, Virginia.  More information - including an audio link to the hearing - can be found here.

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This is interesting (politics).  Today, the Senate Committee on Environment and Public Works is holding a hearing on U.S. EPA's 2010 budget proposal.  While questioning EPA Administrator Jackson, Senator John Barrasso (R-Wyo.) produced a memorandum reportedly from White House Counsel to EPA that he characterized as a "smoking gun" because it suggests a lack of scientific support for EPA's proposed finding that greenhouse gases are a danger to public health.  An OMB spokesperson has apparently confirmed that it was prepared by the President's administrative staff.

Video of the questioning, as well as a copy of the memorandum, can be found here.

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The NYT is reporting that the Obama administration will retain a wildlife rule preventing the government from invoking the Endangered Species Act to restrict GHG emissions allegedly threatening the polar bear and its habitat.

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The Washington Post is reporting that President Obama and Vice President Biden are pressing House Democrats to take action on the American Clean Energy and Security Act of 2009 issued for comment last month by Henry A. Waxman (D Ca.), Chairman of the Energy and Commerce Committee, and Edward J. Markey (D. Mass.), Chairman of the Energy and Environment Subcommittee.  Much of the concern appears to be that this initiative stands in the way of health care legislation that the Administration wants to move forward.

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U.S. EPA has proposed a strategy for increasing the nation's supply of renewable fuels that includes a percentage-based standard that refiners and others must ensure is used in transportation fuel; and that requires renewables to achieve greenhouse gas reductions when compared to the gasoline and diesel fuels they displace.

For more information, see here.

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Today the U.S. EPA proposed a rule that would require approximately 13,000 large source facilities to annually report their greenhouse gas emissions.  The facilities covered include fossil fuel suppliers, industrial chemical suppliers, motor vehicle and engine manufactures and large direct GHG emitters (defined as facilities that emit 25,000 metric tons or more of GHG emissions).  The proposed rule will soon be published in the Federal Register; a pre-publication copy can be found here.

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