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

This post was written by Jayme Butcher.

Substantive revisions to Pennsylvania’s Right to Know Law took effect on Jan. 1, 2009. The thoroughly revised law establishes for the first time an Office of Open Records with the Department of Community and Economic Development to administer the new law and fundamentally changes how citizens access public records. Key changes are discussed below and include:

• The request and appeals process has been substantially streamlined to enable requesters to reach judicial review, in most cases, within a roughly two-month period.
• All records are presumed “public.”
• Agencies bear the burden of proving the applicability of one of 30 new statutory exemptions to the requested information.
• The new law removes substantial ambiguity as to the specific records exempt from disclosure, which should expedite the request and appeals process.
• Appeals procedures are, in part, determined by the type of agency from which records are sought.
   

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 This post was written by Jennifer Smokelin.

Is cap-and-trade likely in the new administration? President Obama's comprehensive New Energy for America plan supports implementation of an economy-wide cap-and-trade program to reduce greenhouse gas emissions 80 percent below 1990 levels by 2050. Details of the to-be-proposed cap-and-trade program are still fuzzy – but where do we look for clues as to the design of the system, which may be passed as early as 2010?

The answer is look to what has previously been the most successful piece of proposed legislation to garner support in Congress to date. The only greenhouse gas cap-and-trade bill that has ever been voted out of a congressional committee is the Lieberman-Warner Climate Security Act of 2007, proposed by Sens. Joe Lieberman, (I-Conn.), and John Warner, (R-Va.). The Senate bill failed to muster the required 60 votes to close off debate in June 2008 and was withdrawn, but it is sure to return in 2009 after a new administration and Congress take office. Thus, it is important to analyze the business opportunities proposed in this bill, as some are likely to be included in whatever national legislation inevitably is passed.
 

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This post was written by Nicolle Snyder Bagnell.

Pennsylvania's Environmental Quality Board, a 20 member board which includes representatives from 11 state agencies, 5 members from the Citizens Advisory Council, and 4 members from the Pennsylvania Senate and House and is chaired by the Secretary of the Department of Environmental Protection (DEP), voted last month to increase permit fees for oil and gas wells. The new fees increase the base cost for a Marcellus Shale drilling permit from $100 to $900 for wells up to 1,500 feet deep plus a fee of $100 for every additional 500 feet beyond the initial 1500 feet, resulting in potential permit fees of thousands of dollars per well. The fee increases must still be approved by the Independent Regulatory Review Commission and the State Attorney General. If approved, the new permit fees will likely be applied beginning in March or April of 2009 and would be the first increase in oil and gas well permit fees in Pennsylvania in 25 years.
 

As discussed in the DEP's fact sheet, the Marcellus Shale is a rock formation in Pennsylvania and parts of New York and West Virginia that may hold trillions of cubic feet of natural gas. Recent advances in drilling technology and rising natural gas prices have led to new interest in this previously untapped formation.
 

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This post was written by David Wagner, Lou Naugle, Nick Elliot and Todd O. Maiden.

With REACH Pre-Registration closed for existing substances, the European Union’s new chemical regime has shifted to the stage called pre-SIEF or Pre- Substance Information Exchange Forum. Following a relatively brief pre-SIEF phase for each substance, a SIEF will form from a pre-SIEF after potential registrants have agreed they intend to register the same substance. Keep in mind that after a substance is Pre-Registered, an extended deadline for Registration, based on volume and nature of the substance, is established ranging from 2010 to 2018. In preparing for Registration, the key issues for potential registrants to understand include collaborating efficiently when sharing data, understanding the roles of the SIEF and consortia, protecting confidential business information, and complying with European Community competition law.

As an initial step, a Pre-Registrant should see who else has pre-registered the same substance. The information should be displayed on a substance specific pre-SIEF page available through the European Chemicals Agency’s REACH-IT portal. A substance’s pre-SIEF page should include information on substance identification and company contact information for each Pre-Registrant (e.g., the company contact person or the only representative. Companies that have pre-registered a substance will automatically become listed on the pre-SIEF page of this substance. The information on the substance’s pre-SIEF page may also identify the SIEF formation facilitator for that substance or provide contact information to initiate discussions on pre-SIEF organization or on the “substance sameness” assessment (discussed below). If you pre-registered through an only representative and do not have access to this information, you may want to contact your only representative for log-in and password information.   

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This post was written by Lawrence A. Demase, Mark A. Mustian, Steven M. Nolan and Christopher L. Rissetto.

The Clean Air Interstate Rule (CAIR), which had been vacated in its entirety by the Circuit Court for the District of Columbia Court of Appeals in July, was revived for an indefinite period on December 23. Upon rehearing, the Court agreed with the Environmental Protection Agency that the immediate effect of vacating CAIR was counterproductive to the environment. The Court therefore partly reversed its original decision by (i) remanding CAIR to the agency for revision and (ii) reinstating CAIR until a new rule is ready to replace it. The impact of this decision is discussed in the attached article.

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This post was written by Katie Annand.

The Scoping Plan envisions reducing GHG emissions in the transportation sector through the use of a low carbon fuel standard (LCFS). The LCFS is an effort to lower the carbon intensity of fuels sold in California. The standard would require transportation fuel providers to ensure the fuels they sell meet a declining standard for GHG emissions in carbon dioxide equivalent per energy unit of fuel sold. The LCFS, an Discrete Early Action measure that will be up for consideration in March of 2009, will look at the full fuel cycle: from extraction, transportation, distillation, distribution and indirect land use. 

The plan estimates that the carbon intensity off transportation fuels in California will be reduced by close to ten percent by 2020. An additional effect will be an incentive to develop a diverse set of clean, low carbon transportation fuel options. 

The LCFS will incorporate market compliance mechanisms that provide flexibility to fuel providers. In other words, fuel providers who exceed the performance standards set by CARB will receive credits that they can trade. 

Click here to return to Scoping Plan overview.

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This post was written by Robert Dellenbach.

The California cap-and-trade program is a prominent component of the California Air Resources Board’s Climate Change Scoping Plan.

Highlights:

• Caps on greenhouse gas emissions will be imposed beginning in 2012, and by 2015, 85 percent of California greenhouse gas producers will be subject to caps; these caps will decline over time to achieve 1990-level emissions by 2020
• Tradable allowances will be distributed to producers, giving them the right to emit greenhouse gasses, up to their respective caps, for specific periods of time
• By January 1, 2011, California regulators must finalize regulations for the system, including the mechanics of the market for trading allowances.
• It has not yet been determined whether allowances initially will be granted, sold or auctioned – we expect many interests to weigh in before the final program is adopted
• Development of this system will result in substantial cost and wealth transfers, requiring vigilance by affected businesses and offering a number of opportunities for entrepreneurs and opportunistic enterprises.

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This post was written by Mark Mustian, Jennifer Smokelin and Lou Naugle.

On Dec. 18, 2008, EPA issued a Vessel General Permit (“VGP”) to regulate discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. See epa.gov. This reverses the long-standing regulatory policy of EPA to specifically exclude discharges incidental to the normal operation of vessels from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). See 38 FR 13528, May 22, 1973.

EPA’s about-face was the result of a petition and legal action by a group of parties concerned about the effects of ballast water discharges. The court found that EPA’s exclusion of incidental discharges from vessels exceeded its authority under the Clean Water Act. See, Northwest Environmental Advocates v. U.S. E.P.A, 2005 WL 756614, 61 ERC 1245, 35 Envtl. L. Rep. 20,075 (N.D. Cal. Mar 30, 2005). The ruling in Northwest Environmental vacated the blanket exemption for vessels effective Dec. 19, 2008. After that date, all discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation are prohibited unless authorized under a NPDES permit.

All owners and operators of non-recreational vessels that are 79 feet and greater in length, commercial vessels less than 79 feet, and commercial fishing vessels of any length that discharge ballast water, are required to obtain and comply with the new VGP. The VGP covers 26 separate sources that will be regulated. Compliance with the VGP for a majority of the sources will require implementation of an inspection program and compliance with Best Management Practices (“BMP”). The permit also imposes additional inspection and monitoring programs for certain classes of vessels, numeric discharge limits for graywater from cruise ships, and oily discharges, and imposes whole effluent toxicity (“WET”) testing requirements on ballast water treatment systems that use biocides.

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