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

The Times Leader has an interesting article on a new study done by researchers at Wilkes University on the greenhouse gas footprint of natural gas:  "'The main message is that seven independent studies now agree that shale gas has a lower greenhouse footprint than coal. That conclusion largely contradicts the findings by a team of researchers at Cornell who published a paper last April that argued shale gas has a higher footprint than coal due to inadvertent releases of methane at gas wells,' [Professor] Klemow said."

Seven?  Nice.

• Email This
• Print

IHS Cambridge Energy Research Associates (IHS CERA) has issued a new report calling for the re-evaluation of greenhouse gas emissions estimates prepared by U.S. EPA.  From the CERA website:  "The estimates are based on assumptions that do not reflect current industry practice and should be reevaluated, the reports says. *** 'Estimates are being used that are not supported by data, do not reflect current industry practice and would be unreliable to use as a base for decision-making.'"  For more, including a copy of the report, see here.

• Email This
• Print

U.S. EPA is proposing to extend certain time periods for using best available monitoring methods (BAMM) for Petroleum and Natural Gas Systems under the GHG Mandatory Reporting Rule.  If you are interested, comments are due no later than July 27, 2011.

• Email This
• Print

The Supreme Court issued its ruling today in the long-awaited climate change nuisance suit.  The Court concluded that federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions.  In an 8-0 decision, the Court ruled that the Clean Air Act and rules authorized by the Act displace the federal common law cause of action and that there is no room for parallel action.  The U.S. Court of Appeals for the Second Circuit had previously ruled that eight states, New York City, and three environmental groups could proceed with lawsuits alleging under federal common law that the companies' carbon dioxide emissions constitute a public nuisance in contributing to global warming.  (Connecticut v. American Electric Power Co., 582 F.3d 309, 69 ERC 1385 (2d Cir. 2009)).  This Supreme Court decision overturns that ruling.

• Email This
• Print

The State of Texas has filed its initial brief challenging U.S. EPA's endangerment finding that concludes that greenhouse gases (GHGs) pose a danger to human welfare, according to this release by the State Attorney General's office.  "The EPA’s Endangerment Finding concluded that greenhouse-gas emissions contribute to the 'perceived but undefined danger' variously referred to as global warming or climate change. The States’ brief explains that the Endangerment Finding is legally flawed because the EPA 'refused to determine what ‘atmospheric concentrations’ of GHGs' pose a threat to humans – which is required by the Clean Air Act. When the EPA issues an Endangerment Finding, the Clean Air Act requires the agency to establish clear standards. The States’ brief explains that the EPA made no 'attempt to determine whether reducing GHG emissions will have any impact on climate change.'"

You can find a copy of the brief at the link as well.

• Email This
• Print

The NYT is reporting on new climate lawsuits brought, in the main, by teenagers against various federal and state agencies claiming that they haven't done enough to protect earth's atmosphere for future generations.  "Most of the individual plaintiffs in the suit, filed in United States District Court in San Francisco, are teenagers, a decision apparently made to underscore the intergenerational nature of the public trust that the earth’s atmosphere represents. More novel, however, is the suit’s reliance on the public trust doctrine, which dates to Roman times."

• Email This
• Print

U.S. EPA has extended several deadlines that you may find relevant:

First, EPA has been asked to reconsider the requirement to submit requests to use best available monitoring methods during the 2011 calendar year by April 30, 2011 and pursuant to its authority under CAA section 307(d)(7)(B) consequently is extending the deadline contained in those provisions until July 31, 2011. Second, EPA has also been asked to reconsider the time period during which owners and operators of certain specific sources could automatically use BAMM without having to request approval by the Administrator. As a result of this second request, pursuant to its authority under CAA section 307(d)(7)(B) EPA is also extending the date by which owners and operators of certain specific sources would not be required to request approval by the Administrator for the use of BAMM from June 30, 2011 until September 30, 2011.  (Emphasis is ours.)

• Email This
• Print

The LAT is reporting that a court has delayed implementation of California's greenhouse gas law, finding that the governing agency had failed to properly evaluate alternatives:  "In a 35-page decision, Judge Ernest H. Goldsmith said the Air Resources Board had failed to consider public comments on the proposed measures before adopting the plan, which affects a broad swath of the state's economy. In particular, the judge noted, officials gave short shrift to analyzing a carbon fee, or carbon tax, devoting a 'scant two paragraphs to this important alternative' to a market-based trading system in their December 2008 plan."

Very interesting.

• Email This
• Print

U.S. EPA has extended the deadline to submit greenhouse gas reporting data to September 30, 2011.  For more, see here.

• Email This
• Print

The NYT is reporting that a House panel has voted to limit U.S. EPA's authority over greenhouse gas emissions:  "Moving on a central tenet of the Republican energy and environment platform, a House committee on Tuesday approved a measure to halt the Environmental Protection Agency’s proposed program to regulate greenhouse gas emissions. Republican leaders promised a floor vote on the bill before the Easter recess."  Several Democrats joined in passing the limitation.

• Email This
• Print

The NYT is reporting on congressional hearings convened by the House Energy and Commerce Committee to address U.S. EPA's regulation of greenhouse gases.  A sample:  "'The E.P.A. and the Obama administration have decided that they want to put the American economy in a straitjacket, costing us millions of jobs and billions of dollars a year,' Representative Joe L. Barton, Republican of Texas, said in his opening remarks. 'They couldn’t get it through the legislative process, so they’ve tried to do it by a regulatory approach. It’s not going to work.'”

Of course, the opening remarks of U.S. EPA's Administrator were just as strong, suggesting that pending legislation to eliminate that regulatory authority would harm the children:  "The bill appears to be part of a broader effort in this Congress to delay, weaken, or eliminate Clean Air Act protections of the American public. I respectfully ask the members of this Committee to keep in mind that EPA’s implementation of the Clean Air Act saves millions of American children and adults from the debilitating and expensive illnesses that occur when smokestacks and tailpipes release unrestricted amounts of harmful pollution into the air we breathe."  For a copy of those remarks, see here.

The next year or two promise to be interesting ...

• Email This
• Print

The NYT is reporting on recent legislative initiatives to curtail U.S. EPA's regulation of greenhouse gases:  "The Inhofe-Upton-Whitfield bill would, its sponsors say, prevent the E.P.A. from enacting rules that should properly be written by Congress, restrict use of the Clean Air Act to address climate change, prevent the administration from enacting a 'backdoor' carbon tax and protect American jobs from foreign competition."  Interesting.

• Email This
• Print

We've noted before the views of ProPublica on natural gas drilling (see here).  Well, they're at it again in a new article seeking to challenge the environmental benefits of natural gas in terms of greenhouse gas emissions.  It does point out the threat to small producers, however:  "In November the EPA announced new greenhouse gas reporting rules for the oil and gas industry. For the first time under the Clean Air Act, the nation’s guiding air quality law, thousands of small facilities will have to be counted in the pollution reporting inventory, a change that might also lead to higher measurements."  After they're counted, can regulation be far away?

• Email This
• Print

The Houston Chronicle is reporting that the U.S. Court of Appeals for the District of Columbia has rejected Texas' bid to prevent U.S. EPA from regulating greenhouse gases in the state.  "The state had asked the U.S. Circuit Court of Appeals for the District of Columbia to delay the Environmental Protection Agency’s plan to seize control of permits for greenhouse gas emissions from power plants and other large industrial sources in Texas.  But the three-judge panel concluded that Texas officials have not met 'the stringent standards required for a stay' while the court reviews the EPA’s takeover of the state’s permitting authority."

Texas has refused to implement EPA's regulations.

• Email This
• Print

The LAT is reporting that California regulators at the Air Resources Board have adopted the country's first carbon trading program:  "'This is an historic venture,' said Mary Nichols, chairwoman of the California Air Resources Board, as the panel voted 9 to 1 to approve some 3,000 pages of regulations and supporting documents, crafted over three years of intense negotiations with businesses and public interest groups."

Concerns over the economic impact of the regulations appear to have been discounted.  In the very next paragraph of the article, Ms. Nichols states:  "'[M]ost political people said we should do as little as possible as slowly as possible.' Instead, she said, 'we are being cautious and careful, but in the context of a very bold effort.'"

• Email This
• Print

The Supreme Court has agreed to hear an appeal challenging the ability of a plaintiff to claim that utility carbon dioxide emissions are creating a public nuisance by contributing to global warming, according to this article in the NYT.  "It is the first public-nuisance suit related to climate change to reach the Supreme Court. Lower courts have generally declined to allow such suits to proceed because it would put judges in the position of deciding how much carbon dioxide was too much."

• Email This
• Print

U.S. EPA has issued a final rule requiring the reporting of certain greenhouse gas emissions from the natural gas industry.  From its press release:  "Beginning in 2011, petroleum and natural gas facilities that emit more than 25,000 metric tons of carbon dioxide equivalent a year are required to monitor and report all greenhouse gas emissions to EPA. Data collection for petroleum and natural gas sources will begin January 1, 2011, with first annual reports due to EPA March 31, 2012."

Note that the definition of "facility" may not be what you think.  From the rule:  "[A]s proposed in April 2010, the definition of an onshore petroleum and natural gas production facility for this subpart is all petroleum or natural gas equipment associated with all petroleum or natural gas production wells and CO 2 EOR operations that are under common ownership or common control including leased, rented, and contracted activities by an onshore petroleum and natural gas production owner or operator and that are located in a single hydrocarbon basin as defined in 40 CFR 98.238. Where a person or entity owns or operates more than one well in a basin, then all onshore petroleum and natural gas production equipment associated with all wells that the person or entity owns or operates in the basin would be considered one facility."  (Emphasis is ours.)

Here is a copy of the pre-publication rule.

A copy of the final, published rule can be found here.  (Bumped.)

• Email This
• Print

It appears that California may have erred when it calculated pollution levels used to support the state's clean air standards - by 340%.  According to the San Francisco Chronicle:  "The pollution estimate in question was too high - by 340 percent, according to the California Air Resources Board, the state agency charged with researching and adopting air quality standards. The estimate was a key part in the creation of a regulation adopted by the Air Resources Board in 2007, a rule that forces businesses to cut diesel emissions by replacing or making costly upgrades to heavy-duty, diesel-fueled off-road vehicles used in construction and other industries."

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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."

• Email This
• Print

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.

• Email This
• Print

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).]

• Email This
• Print

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.

• Email This
• Print

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.]

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print

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.

• Email This
• Print