Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by David Wagner.

Over the past few months, nanotechnology has been in the news.  Four items are worth noting:

• In February, the U.S. Environmental Protection Agency fined a California technology company for failing to register nanomaterial under the Federal Insecticide, Fungicide and Rodenticide Act.  The $208,000 fine was based on the company's failure to register its products as pesticides and for allegedly making unverified claims relating to the antimicrobial capabilities of the nano-silver coatings used in its computers keyboards and mouse accessories.
• In May, a scientific report in the journal Nature Nanotechnology discussed a possible link between carbon nanotubes and the development of precursors of mesothelioma.
• Shortly thereafter, NGO groups petitioned USEPA, calling for the review and control of some 260 nano-silver products. See Posting "Citizen Petition for Regulation of Nano-Silver (June 16, 2008).
• Then in June, the European Commission issued guidance in addressing nanomaterials under REACH, its new chemicals regime.  The guidance indicated that for the nanoscale form of a substance on the market in bulk, the European Commission may require additional information on the specific properties or additional risk management measures. While there is still significant uncertainty about the regulation of nanomaterials, companies working with nanomaterials should closely track what scientists say, what NGOs threaten, and what regulators do both here and abroad.  There is increasing scrutiny of chemical substances throughout the world, and understanding recent developments and the related legal requirements will likely mitigate liability exposure and the business risk associated with nanomaterials. 

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This post was written by Louis Naugle, Todd O. Maiden, John Lynn Smith, Randall D. Morrison, Julia C. Butler, Lawrence Demase, and Jennifer Smokelin.

On the heels of the California Air Resources Board’s (“CARB”) release of its much-anticipated Climate Change Draft Scoping Plan in late June, the structure of both California’s developing cap-and-trade system and a broader western regional cap-and-trade system are coming together quickly.

On July 23, 2008, the CARB took another big step in releasing the in-depth appendices to the scoping plan, providing more detail about its cap-and-trade concept, as well as other regulatory measures. On the same day, the Western Climate Initiative (“WCI”), of which California is a member state, released the draft design of its regional cap-and-trade program.

The WCI is an international coalition comprised of member states and observer states. Currently, the member states include California, Arizona, New Mexico, Montana, Oregon, Utah and Washington. The Canadian Provinces that are also members include Manitoba, Quebec, British Columbia and Ontario. The observer states include at least 13 more states and/or provinces, encompassing the remainder of the Western United States, stretching as far east as Kansas, and also including many of the northern states of Mexico.

The new details of the WCI plan suggest that member states and organizations within those states should begin preparation for compliance with the regional cap-and-trade system. The draft design defines the scope of the system, including which greenhouse gases (“GHGs”) are covered, which emission sources are covered, and which types of facilities and companies are likely to have the compliance obligation. Many key issues are still to be determined over the next few years. Important details such as setting a regional cap, determining a distribution system for allowances, and defining a role for the use of offsets, are major provisions that will be finalized as the member states refine the plans within their own borders.

With the release of the draft scoping-plan and the appendices, California has demonstrated that it is prepared to take the lead, even among the member states of the WCI. California’s cap-and-trade system could cover up to 85 percent of the state’s emission sources by 2020. The broad design of the systems is generally known, including the concepts of a declining cap over time, the ability to buy and sell allowances to maintain optimal cost effectiveness, and the imposition of significant penalties for those organizations not in compliance. However, many details are not yet finalized, and the issue of how allowances will be distributed – whether they are to be distributed freely or as part of an auction system – is likely to be one of the most hotly debated topics over the coming months and years.

Comments on the WCI's draft design are due August 13, 2008, comments on the CARB's scoping plan are due August 1, 2008, and comments on the CARB's scoping plan appendices are due August 11, 2008.

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This post was written by Steven M. Nolan, Lawrence A. Demase, and Louis A. Naugle.

In a recent, much-anticipated decision in State of North Carolina v. Environmental Protection Agency, No. 05-1244 (July 11, 2008), the District of Columbia Circuit Court vacated the Environmental Protection Industry’s Clean Air Interstate Rule (“CAIR”) in its entirety. 

The immediate impact of the decision will be upon electric generators (“EGUs”), in that sulfur dioxide (“SO₂”) allowances under Title IV of the Clean Air Act will no longer be subject to expedited retirement. The new trading scheme for nitrogen oxide (“NOx”) allowances was also vacated by the decision.

The Clean Air Act imposes a duty on each state to have a State Implementation Plan which, inter alia, contains adequate provisions prohibiting in-state sources of air pollution from emitting any air pollutant in amounts that will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any National Ambient Air Quality Standard (“NAAQS”).

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This post was written by Jennifer Smokelin, Lawrence Demase and Louis Naugle.

Global warming legislation was enacted for the first time in Pennsylvania July 10, when Gov. Ed Rendell signed the Pennsylvania Climate Change Act. The measure was overwhelmingly approved earlier this month by both houses of the Pennsylvania General Assembly.

A coal-rich state, Pennsylvania emits 1 percent of the world’s greenhouse gases responsible for global warming, more than the emissions of 105 developing countries combined. 

The Climate Change Act is immediately effective and will:

(1) Require the Pennsylvania Department of Environmental Protection to conduct an annual inventory of greenhouse gas emissions in all sectors, specifically but not limited to transportation, electricity generation, industrial, commercial, mineral and natural resources, production of alternative fuel, agricultural, and domestic sectors, and through such inventory, to establish a baseline of GHG emissions

(2) Require DEP, within 90 days of the Act’s effective date, to set up a voluntary registry for business and industry where they can track their GHG emissions and potentially get credit for voluntary GHG emission reductions

(3) Provide for an 18-member politically appointed stakeholder advisory group to DEP (the “Climate Change Advisory Committee” or “Committee”), that will work with DEP to develop a state plan (“Climate Change Action Plan”) to reduce GHG emissions, which is to be available within 15 months of the Act’s effective date

(4) Require DEP to report on potential climate change impacts and economic opportunities for the state within nine months of the Act’s effective date (revisions to be provided every three years thereafter)

(5) Require the Secretary of DEP to monitor the enactment of laws by the U.S. Congress to determine whether any federal law is more stringent than Pennsylvania law with regard to GHG inventory, registry or reporting requirements and, if so, to identify the affected entities, which must comply with the more stringent federal regulations through a notice in the Pennsylvania Bulletin.

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This post was written by Todd Maiden, Lawrence Demase, Jennifer Smokelin, Louis Naugle, and John Lynn Smith.

On June 26, 2008 the California Air Resources Board (“CARB”) released a draft of California’s scoping plan for the reduction of greenhouse gas (“GHG”) emissions. This was a major step towards the implementation of Assembly Bill (“AB”) 32, the California Global Warming Solutions Act of 2006. CARB will continue to solicit public input on the draft scoping plan until early October. A revised proposed scoping plan will be then released and will be considered by the CARB in November.

The draft plan calls for cutting greenhouse gas emissions to 1990 levels by the year 2020. While this is a 30% reduction from “business-as-usual” emission levels (the level that emissions would reach by 2020 without any attempts at reduction), it is only about a 10% reduction from today’s levels. The 2020 goal is not the end of the emission reduction effort. By 2050, California hopes to reduce emissions to 80% below 1990 levels. The reduction plan for 2020 will provide the framework for successful implementation of the long-term reduction plan.

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