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

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

In Rapanos v. United States, 547 U.S. 715 (June 19, 2006), the Supreme Court issued a decision that delineated the extent to which federal regulation extended over water resources. In that case, the petitioner had filled in wetlands on his property without obtaining a permit, and had thereafter been prosecuted for doing so. The decision turned on the meaning of the phrase “waters of the United States” as used in the Clean Waters Act.

Three opinions emerged. Writing for four Justices, Justice Scalia held that the term “waters of the United States” encompassed waters that were navigable in the traditional sense and abutting wetlands; relatively permanent, standing or continuously flowing bodies of water connected to traditional navigable waters; and wetlands with a continuous surface connection to such waters (the “Scalia test”). In an opinion concurring in the judgment, Justice Kennedy stated that he would hold that wetlands were waters of the United States if the wetlands alone, or in combination with similarly situated lands in the region, significantly affected the chemical, physical and biological integrity of other covered waters more readily understood as navigable (the “Kennedy nexus” test). Four dissenters would have upheld a broad regulatory definition of the term “waters of the United States.”

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This post was written by Lawrence A. Demase, Russell R. Eggert, Todd O. Maiden, Louis A. Naugle, Christopher L. Rissetto, Harley N. Trice, II, and Steven M. Nolan.

In an Environmental E-Flash in July, Reed Smith reported that the Court of Appeals for the District of Columbia Circuit had vacated the United States Environmental Protection Agency’s Clean Air Interstate Rule (“CAIR”), North Carolina v. Environmental Protection Agency, 531 F.3d 896 (D.C. Cir. 2008) (finding that CAIR had “more than several fatal flaws”).

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This post was written by Katie Annand.

The Scoping Plan incorporates various targeted fees on GHG emission producing activities as part of the state’s comprehensive reduction strategy. The plan also considers potential uses for revenue raised by these fees and others. 

High Global Warming Potential Gases

• One targeted fee in the Scoping Plan is a mitigation fee for high global warming potential (GWP) gases. The plan focuses on high GWP gases because they are relatively inexpensive, there is no incentive to develop alternatives, reduce leakage or recover these gases from old units. The plan anticipates that a mitigation fee would better reflect the impact of these gases on the environment, would promote alternatives to using these gases, and would improve removal and recycling of the gases. 
• The high GWP gas fee would be variable and associated with the impact the chemical has on public health and on the environment. The fees would decrease as the manufacturer or producer redesigned the product or found alternatives.

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This post was written by Thomas Quinlan.

Transportation-related GHG emissions are one of the key elements of the Scoping Plan as passenger vehicles account for almost 30 percent of California’s GHG emissions. CARB is pursuing a three-prong strategy in this sector: reduce GHG emissions from vehicles, reduce the carbon content of fuels, and reduce the miles vehicles travel. 

To meet these goals, the plan incorporates the following programs:

Light Duty Vehicles

• Under the authority of AB 1493 (Pavley), CARB adopted vehicle standards that lowered GHG emissions beginning in 2009. These standards have not taken effect yet because of various legal challenges and delay by US Environmental Protection Agency (EPA). Implementation of the Pavely standards and a second, more stringent, phase of regulation is proposed in the Scoping Plan. 
• CARB is also evaluating the use of “feebates,” which would combine a rebate program for low emitting vehicles with a fee program for high emitting vehicles. Feebates would be used either to complement the Pavley standards or to achieve similar goals if the Pavley standards do not take effect. 

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This post was written by Steven Gasser.

The approved Scoping Plan revises California’s Renewable Portfolio Standard to achieve a 20 percent renewable energy mix statewide by 2010, and a 33 percent renewable energy mix by 2020. The plan defines renewable energy sources as wind, solar, geothermal, small hydroelectric, biomass, anaerobic digestion and landfill gas. The state currently is at a 12 percent renewable energy mix.

To achieve this goal, the Plan proposes the following:

• Making significant investment in the transmission infrastructure to renewable resource zones. The Renewable Energy Transmission Initiative (RETI), a broad collaborative of state agencies, utilities, the environmental community, and renewable generation developers, will work to identify and prioritize renewable generation zones and associated transmission projects.
• Implementing systems changes to allow integration of large quantities of intermittent wind and solar generation, e.g. grid improvements so that fluctuations in power availability can be accommodated; improved communications technology, automated demand response, electronic sub-station improvements to accommodate intermittent energy sources.
• Reducing complexity and cost faced by small renewable developers (20 megawatt or less) in contracting with utilities to supply renewable generation. 
• Requiring investor owned utilities to increase the share of renewables in their portfolios to 20 percent by 2010.
• High Recycling / Zero Waste initiatives, which may also contribute to achieving the 33% goal through deployment of anaerobic digestion for production of fuel/energy.

Click here to return to Scoping Plan overview.

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This post was written by Sara Mo.

The approved Scoping Plan includes measures that expand and strengthen existing energy efficiency programs as well as building and appliance standards. 

The plan establishes new targets for statewide annual energy demand reductions of 32,000 gigawatt hours and 800 million therms from businesses. In addition, the plan sets forth the following energy efficiency strategies:

• Cross-cutting Strategy for Buildings– Construction of “Zero Net Energy” buildings that regulate building energy use over the course of a typical year by reserving surplus energy to a grid and drawing from the grid when additional energy is needed;
• Codes and Standards Strategies– More stringent building codes and appliance efficiency standards; broader standards for new types of appliances and for water efficiency; improved compliance and enforcement of existing standards; voluntary efficiency and green building targets beyond mandatory codes;
• Strategies for Existing Buildings – Voluntary and mandatory whole-building retrofits for existing buildings; innovative financing to overcome first-cost and split incentives for energy efficiency on site, renewables and high efficiency distributed generation;
• Existing and Improved Utility Programs – More aggressive utility programs to achieve long-term savings; and
• Other Needed Strategies – Water system and water use efficiency and conservation measures; local government programs that lead by example and tap into local authority over planning, development, and code compliance; additional industrial and agricultural efficiency incentives; providing real time energy information technologies to help consumers conserve and optimize energy performance.

The Scoping Plan also promotes the use of solar water heating systems and builds on existing legislation, such as the Solar Water and Efficiency Act of 2007, which authorized a ten-year, $250 million incentive program for solar water heaters with a goal of promoting installation of 200,000 systems in California by 2017. In addition, the plan recommends developing combined heat and power systems rather than building new power plants or replacing existing ones.

The Scoping Plan accounts for other innovative approaches that may be used to motivate private investment in efficiency improvements. For example the cap and trade program [link to Cap and Trade], will provide incentives to pursue projects to reduce GHG emissions, such as the bundling of energy efficiency improvements for small businesses. California will also pursue comparable investment in energy efficiency from all retail providers of electricity in California, including both investor-owned and publicly owned utilities.

Click here to return to Scoping Plan overview.

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This post was written by Katie Annand.

(This is the first post in a series of seven.  This overview post can be used to view selected issues within the Scoping Plan.  Please see bulleted list below.)

On December 11, 2008, the California Air Resources Board (CARB) approved the Scoping Plan for AB 32, the Global Warming Solutions Act of 2006. The Scoping Plan, which has been in draft form since June 2008, outlines California’s strategies for meeting AB 32’s ambitious mandate: reduction of California greenhouse gas (GHG) emissions to 1990 levels by 2020. The plan has the potential to be a model for other states’ – and the federal government’s – climate change strategies.

The measures in the plan are continuing to be developed by CARB and will be in place by 2012. For more information about specific focus areas discussed in the plan, click on the links above. For the complete Scoping Plan, click here.

 Key strategies addressed in the Scoping Plan include Emissions Reduction Measures. These measures take into account both existing policies and new proposals and focus on the following areas:

• Energy Efficiency. Expanding and strengthening existing energy efficiency programs and raising efficiency standards. For more information, click here.
• Renewable Energy. Achieving a statewide renewable energy mix, requiring 33 percent of the state’s electricity to come from renewable sources by 2020. For more information, click here.
• Cap and Trade Programs. Establishing a broad-based California cap and trade program to provide finite limits on emissions. For more information, click here.
• Transportation. Developing a wide range of programs and regulations to decrease GHG emissions from the transportation sector. For more information, click here.  
• Fuel Standards. Adopting and implementing a low carbon fuel standard (LCFS) to reduce the carbon intensity of fuels sold in California. For more information, click here.
• Targeted Fees. Creating targeted fees on GHG emission producing activities. For more information, click here.

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

On Oct. 24, 2008, the Wall Street Journal reported that the Bush Administration, over the opposition of many members of Congress, had ordered the Environmental Protection Agency to finalize the EGU Hourly Test Rule (“Rule”), which would have allowed power plants to upgrade the plants and extend their life spans without having to install more modern emission control equipment. The gist of the Rule, which was initially proposed in May 2007, was that the definition of the term “emission increase” as used in New Source Review regulations, would require both an increase in the hourly emissions rate and an increase in actual emission for the year. The current rule defines emission increase as an increase in actual emissions measured on an annual basis.

The Administration had based its support for the Rule on the anticipated emissions reductions that would result from the Clean Air Interstate Rule (CAIR). However, as we noted in a previous e flash, CAIR was vacated in its entirety July 11¹ by the Court of Appeals for the D.C. Circuit.

The Journal reported that EPA had been asked to finalize the Rule by Nov. 1. However, the expected final version did not appear then, or at any time thereafter. Finally, Dec. 10, EPA announced that it would not finalize the Rule after all. Given the opposition of Congressional Democrats, the Rule is unlikely to be revived.

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This post was written by Louis A. Naugle and Mark A. Mustian.

A few months ago, EPA began a process toward possible regulation of the disposal of unused pharmaceuticals into sanitary sewer systems, by publishing notice of its intent to submit an Information Collection Request in order to better understand and document the current handling and disposal practices of unused pharmaceuticals. See, 73 FR 46903 (Aug. 12, 2008). Just last week, EPA announced a separate but related proposed rulemaking, in which EPA is proposing changes to the handling and disposal of unused pharmaceuticals that are currently classified and handled as hazardous waste (the “Unused Pharmaceuticals Rulemaking”). In this proposed Unused Pharmaceuticals Rulemaking, EPA plans to add pharmaceutical wastes that are RCRA hazardous waste to the list of materials that are classified as universal wastes. See, 73 FR 73519. This proposed change will potentially reduce costs for facilities that currently dispose of their unused pharmaceuticals as RCRA hazardous waste. The impact of EPA’s overall efforts to regulate the large and unknown volume of pharmaceutical waste not currently handled as hazardous waste is unclear.

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This post was written by Indeg L. Kerr and Siobhan Hayes.

Why you need to know now

In 2010 the top 5,000 or so companies in the UK will have to buy “allowances” to cover the carbon emissions of their group in the UK. The Government are setting up a Carbon Reduction Commitment (‘CRC’) Scheme. The Climate Change Act came into force last week containing just a broad outline of the Scheme. 

Draft Regulations with much needed details are to be published in February 2009 but consultation about the Scheme has already taken place so there are some things that we know big businesses need to start doing now and to prepare for emissions trading!

This client alert is aimed at those organisations who have not yet considered the CRC in relation to their UK business. It is a brief introduction. We can help you with more detailed information once the Regulations are available.

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This post was written by Christopher Rissetto, Stephanie Giese and Areta Kupchyk.

The Environmental Protection Agency announced Nov. 19, 2008 that it is seeking public comments on a petition asking it to regulate nanosilver products as pesticides.  The authors of this article discuss that petition, a related petition sent to the Food and Drug Administration, and other activities at federal regulatory agencies and in the Congress affecting products that incorporate nanomaterials.  They expect a new regulatory environment to develop in 2009 for companies producing and selling such products. 

To learn more, please click here for the full article.

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