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

This post was written by Mark Mustian and Larry Demase.

On December 23, 2009, the Pennsylvania Supreme Court issued a decision in PPL Generation v. Commonwealth of Pennsylvania. The state Supreme Court upheld the lower court’s determination that the Pennsylvania Mercury Rule (“PA Mercury Rule”) was unlawful, invalid and unenforceable. The lower court case was decided January 30, 2009 (No. 446 M.D. 2008, Commonwealth Court of Pennsylvania), and a discussion of that decision can be found here.

The Pennsylvania Supreme Court’s decision in favor of PPL Generation puts an end to state efforts to specially regulate mercury emissions from electric generating units (“EGUs”) in Pennsylvania, at least until such a time as the USEPA promulgates new federal mercury regulations, or until enabling legislation is passed in Pennsylvania authorizing the adoption of mercury regulations. Thus, EGUs in Pennsylvania will not be required to comply with the state mercury rule’s limits on mercury, which were to become effective January 1, 2010.

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This post was written by Larry Demase and Jennifer Smokelin.

As they return from two weeks at the COP in Copenhagen, Reed Smith lawyers Lawrence Demase and Jennifer Smokelin reflect on what transpired and offer some advice regarding what to look for in the future:

The Copenhagen Accord, negotiated by only five countries and outside of the UN process, lays out the high-level agreements in principle of the largest emitters that are not party to the Kyoto Protocol: China, the United States, and India. The most significant outcome is the agreement with regard to greenhouse gas (GHG) reduction by non-Kyoto parties, particularly China and the United States. With China's use of oil increasing at an incredible rate, even modest commitments (like a decrease in GHG intensity), could be a significant undertaking. The impact of the Copenhagen Accord may be felt more in the price of oil than in the reduction of emissions of GHG.

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This post was written by Luca Salerno and Siobhan Hayes.

In earlier postings we have introduced the UK’s Carbon Reduction Commitment (Energy Efficiency) Scheme (“CRC”) and have considered the impact for companies and groups and penalties for non-compliance. This note considers briefly what the problems are in the legal classification of carbon emission allowances and the issues that will need to be resolved by the time businesses start trading them.

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This post was written by Larry Demase.

Just like our Day 1 report from Copenhagen, we are back to a bunch of “C” words. This time they include: commitments, cost, China, closed door meetings, and, of course, confusion. We will certainly post a COP-15 recap and try to explain “what it all means.”

As of this 22:00 GMT posting, it is being reported that “developed and developing countries have now agreed to listing their national actions and commitments, a finance mechanism, to set a mitigation target of 2 degrees Celsius and to provide information on the implementation of their actions through national communications, with provisions for international consultations and analysis under clearly defined guidelines.”

It remains to be seen how this agreement compares to the last (and fourth) draft of the “Copenhagen Accord”. The fourth draft had called for global GHG emissions to be cut by 50% from 1990 levels by 2050, with Annex I Parties (industrialized nations except the United States) committing to reductions of 80% by the same time. Other nations would “implement mitigation actions”, in the form of national action plans, that would be updated every two years. The fourth draft also acknowledged the scientific view that nations need to keep emissions below a level that stops the global average temperature exceeding a 2 degrees Celsius increase above pre-industrialized levels.

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This post was written by Larry Demase.

Prior to being replaced, Connie Hedegaard analogized the last minute nature of the COP to procrastinating elementary school students, stating, “It’s just like schoolchildren. If they have a very long deadline to deliver an exercise they will wait for the last moment…. It’s basically as simple as that.” With one full day left, COP-15 is in countdown mode and we’ll see if the parties finish their homework on time.

Underscoring the urgency, political heavyweights are here and making the rounds, including Prime Minister Gordon Brown, US Secretary of State Hillary Clinton, former Vice President Al Gore, and Senator John Kerry. In a plenary session, Prime Minister Brown stated that there was no insurmountable obstacle to an agreement in Copenhagen which could be turned into a binding treaty in 6-12 months. He called for (a) long term goal of 2 degree temperature increase; (b) immediate (ok, year 2012) aid of $10 billion to developing countries; (c) $100 billion in long term financing to developing countries; and (d) a commitment by all countries to reduce emissions to a degree consistent with their “highest ambition”.

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This post was written by Larry Demase.

In addition to the official proceedings, much of the activity at and around the COP centers on what is not said or said unofficially or (hearsay notwithstanding) just heard from other delegates. For example:

• At a side event this morning hosted by the International Energy Agency, the Swedish Deputy Prime Minister, who was the keynote speaker, did not discuss the resignation of Connie Hedegaard, the Danish chairwoman in charge of COP-15. Lars Lokke Rasmussen, the Danish Prime Minister took over for her purportedly because he was not happy with pace of negotiations. That is in contrast with the official statement that the takeover was planned. Regardless, there is buzz among delegates that the Danish Prime Minister is trying to politically hijack the conference.

• A Japanese negotiator lamented that he stayed up all night to negotiate and was depressed over prospects – although he said he thought there was still a chance for a political agreement. 

• The European Union wants a reduction based on 1.5 degree (C) in temperature but there has been significant discussion among delegates that this level of reduction is unworkable.

Scuttlebutt, protests and general chaos aside, where does that leave us? For the next two days, the COP is left to focus on the deadlock in the negotiations over payment to the developing countries and the level of emission target reductions. 

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This post was written by Larry Demase.

It’s time to add a corollary to our earlier statement that it’s not just what you know and who you know but what you are called. Our corollary is that it’s also what kind of credentials you have.  The Bella Centre was a mob scene this morning and it turned away thousands of registrants. Still, for the 20,000 registrants who didn’t get in, it’s hard to say what they missed. 

The high level negotiations between countries have reached a critical point with various alliances being formed on a number of issues. Nonetheless, the possibility of a broad based agreement may be fading. Of course, things may change but the Kyoto Protocol parties (along with the United States) are likely to leave with an agreement to finish their work either at a June meeting or at the next annual U.N. conference in late 2010 in Mexico City.  

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This post was written by Larry Demase.

After a relatively quiet weekend (in which we took a two-day blogging break), tempers flared as today was a day of protest at the COP.

First, observer-delegate protests. Protestors - including a group of activists dressed as polar bears urging the talks to “save the humans” - inside the Bella Center delayed registration and attendance: five thousand delegate hopefuls were queued up outside the Bella Center trying to get in at 2 p.m., most having waited in the weather since 7:30 a.m. this morning.

Then, party-delegate protests. For five hours today (Monday), just four days before world leaders are due to forge a deal in Copenhagen, African countries backed by 135 developing countries including China and India staged a boycott of negotiations claiming rich nations are trying to avoid new, legally binding promises by ditching the Kyoto Protocol; the boycott ended when rich nations assured the Africans they were willing to discuss Kyoto commitments However, precious time was lost – in a week where there was already no time to spare (see blog posts from last week re key negotiators’ lament for “more time”).

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This post was written by Jennifer Smokelin.

Overtaking the position from American golf star Tiger Woods, “Copenhagen” (as in COP-15) is now the number one search query on the world’s leading internet search engine Google, according to Treehugger.com.  And the numbers continue to add up: 113 heads of state are scheduled to arrive next week, the most at any Conference of the Parties (COP).  There have been over 35,000 registrants for an event center that can only hold 15,000. By comparison, Kyoto, where the Protocol was agreed to, had 11,000 registrants. Now, in a move never seen before at a COP, the UNFCCC has resorted to implementing a secondary badge system to restrict access, mostly for non-governmental organizations, next week.  That certainly underscores the unprecedented convergence of public opinion and politics on this issue.

But will the COP be successful? That depends, of course, on how you define success. Todd Stern, the top US climate negotiator said “absolutely I think there is a deal to be done here”. But what are the terms? Let’s consider an easier question: are the negotiators making progress? At the early morning plenary COP/MOP (Meeting of the Parties), chairs of the key working groups KP and LCA put forth drafts that seemed at least to Executive Secretariat of the UNFCCC Yvo de Boer to set forth the beginnings of a framework for meaningful action.   Some experts state that the negotiations are precisely where they need to be before heads of state step in: all issues open but the choices sharpened. But Mr. de Boer admitted that now, going in to the weekend (not waiting until midweek), was the time to focus on the “big picture” items, e.g., whether the world should seek to keep global temperatures from rising beyond a ceiling of either 2.7 or 3.6 degrees Fahrenheit above pre-industrial levels and what countries should commit to with regard to short term and long term financial aid. On the latter issue, the European Union stepped up and pledged $3 billion in climate aid to poor countries. Let’s see the United States match that.

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This post Is written by Jennifer Smokelin.

It’s Day 4 of the Conference of the Parties (COP) and there is still some confusion among non-governmental groups (NGOs) – and let’s hope not among the Parties – as to the differing responsibilities of the two working groups at the COP: the Ad Hoc Working Group on Long-Term Cooperative Action under the Climate Convention (AWG-LCA) and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) [see Day 2 post for details]. 

At today’s AWG-KP civil society briefing, a question from the floor asked how the AWG-KP working group was progressing with regard to the Nationally Appropriate Mitigation Actions (NAMAs) and certain financing issues.  After consultation with the KP committee chairs on the dais, Chair John Ashe (Antigua and Barbuda) carefully explained that the question from the floor got it wrong:  this was the briefing for the “good guys” - you know, the ones who have already made commitments - and that questions regarding NAMAs and financing were being discussed by the AWG-LCA (by implication, the not so good guys).  Care to take a guess where the United States falls? 

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This post is written by Jennifer Smokelin.

As I think back on last evening’s buzz and today’s speeches, including remarks by USEPA Administrator Lisa Jackson at the Conference of the Parties (COP), the loud speaker system at the nearby United States’ pavilion blares an old Marvin Gaye song: “it takes two, baby. Me and you, just takes two.”  And one wonders whether the US delegation has resorted to delivering a subliminal musical message to industrialized countries (Annex I parties) and developing countries (Annex II parties) when it comes to greenhouse gas (GHG) emission reductions. 

Last evening and into today, much of the buzz at the Bella Centre in Copenhagen focused on a “Danish Text” for a political agreement on climate change. It’s been criticized as favoring industrialized countries by seeking to preserve their economic dominance. Another text believed to be drafted by China favored, not surprisingly, developing countries. The Chinese text, for example, made no mention of specific commitments by developing countries. Also weighing in today was Todd Stern, the top U.S. climate negotiator. He emphasized that any international climate change agreement must include commitments from developing, especially fast-growing, countries such as China. This takes us back to what we mentioned in our Day 1 posting, namely, that the four issues capturing the most attention in Copenhagen center on industrialized targets, commitments to and by developing countries, financing and the legal shape of the agreement.   So to address climate change in a meaningful way, just sing along: “To make a dream come true, it just takes two.”

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This post was written by Jennifer Smokelin.

Here in Copenhagen, it’s not just what you know and who you know but what you are called. In addition to the government negotiating teams, the delegates are categorized by acronyms: BINGOs, RINGOs, ENGOs, YUNGOs, and several others. As delegates for the Environmental Markets Association, my colleague Larry Demase and I are BINGOs: Business and Industry Non-Governmental Organizations. (RINGOs are Research-oriented and Independent NGO, ENGOs are Environmental NGOs and YOUNGOs are Youth NGOs). In addition to observing the negotiations, these additional groups organize side events and daily briefings with negotiators to ensure that all key issues are considered and addressed in the climate negotiations.

And to follow the climate negotiations, there are a few more acronyms to learn. In 2007, the Conference of the Parties adopted the Bali Action Plan and Bali Roadmap. The key negotiating groups under the Bali Action Plan and Roadmap are the Ad Hoc Working Group on Long-Term Cooperative Action under the Climate Convention (AWG-LCA) and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP). The names for both groups are fairly self-explanatory. The AWG-LCA focuses on long-term cooperation including mitigation, adaptation, finance and technology/capacity-building. The AWG-KP focuses on emission reductions by Annex I countries (i.e., developed countries) beyond 2012. The road for both of these groups is supposed to end with reports for the larger Conference of the Parties (COP-15) to consider in Copenhagen at the end of this week.

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This post is written by Larry Demase.

In response to the decision of the United States Supreme Court in Massachusetts, et al. v. Environmental Protection Agency, et al, 127 S.Ct. 1938 (2007), yesterday USEPA announced its finding, long anticipated, that greenhouse gases threaten the public health and welfare of the American people. This so-called endangerment finding also includes USEPA’s decision that greenhouse gas emissions from on-road vehicles contribute to the threat to human health and the environment and purportedly supports USEPA’s proposed greenhouse gas standards for light duty vehicles. According to Administrator Lisa Jackson, the Agency’s endangerment finding is also intended to support its proposed rule requiring new or modified source of greenhouse gases to utilize “best available control technology” to control or reduce emissions of greenhouse gases. 

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This post was written by Jennifer Smokelin.

As you know, the United Nations climate conference began today in Copenhagen, Denmark. And Reed Smith is here. Actually it’s the 15th conference of its kind and it is properly known as Conference of the Parties or COP-15 under the United Nations Framework Convention on Climate Change (UNFCCC). COP-15 may not yield a new global climate treaty with every minor detail in place. But hopefully it will close with agreements on four political essentials, thereby creating some clarity the world – not least the financially struck business world – needs. Stay tuned to this site to find out, day by day, how close the parties some on these issues.

Four issues to follow are:

1. How much are industrialized countries willing to reduce their emissions of greenhouse gases? 
2. How much are major developing countries such as China and India willing to do to limit the growth of their emissions? 
3. How is the help needed by developing countries to engage in reducing their  emissions and adapting to the impacts of climate change going to be financed?
4. How is that money going to be managed?

As crowds of people arrive in Copenhagen, and amid an assortment of climate-related side events such as Hopenhagen Live, COP-15 opened today. Speakers focused on a lot of “C” words: how the conference marks the culmination of a two-year negotiating process to enhance international climate change cooperation, how countries and the negotiations must be constructive, and how there was hope for consensus. 

Much of the news for the day, it seems, was back in the United States. The U.S. Environmental Protection Agency (USEPA) announced its final endangerment finding that concludes greenhouse gas emissions endanger public health and welfare. The finding does not include any proposed regulations, but it will pave the way for several pending EPA rules. For example, USEPA will be able to finalize draft regulations to impose the first-ever federal tailpipe standards for greenhouse gases and to require the largest industrial sources to install the best available control technology to curb their emissions. EPA is expected to finalize both of those rules by March 2010.

The determination is expected to add to the Obama administration’s bargaining power in the absence of comprehensive U.S. energy and climate legislation. Also, President Obama shifted his visit to the Copenhagen talks from this week to the last day, indicating an increase in the administration’s commitment to, and hopes for, a successful outcome. The President also indicated that there appears to be an emerging consensus for developed nations to mobilize $10 billion a year by 2012 to support climate change adaptation and mitigation in developing countries.

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From December 7-18, representatives from nations around the globe will gather in Copenhagen to discuss a global agreement on climate change. Denmark will act as host for this fifteenth Conference of the Parties (COP) under the United Nations’ Framework Convention on Climate Change (UNFCCC). Officially, the stated goal of COP15, according to United Nations organizers, is “to stabilize the amount of greenhouse gases in the atmosphere at a level that prevents dangerous man-made climate changes.” They add that “this stabilization must occur in such a way as to give the ecosystems the opportunity to adapt naturally” without compromising food safety or hindering sustainable social and economic development around the world. 

Reed Smith environmental attorneys will be attending the conference as delegates, along with a significant number of business and political leaders, and will post daily from the ground on issues including progress toward a post-Kyoto agreement, decisions regarding technology transfer to developing countries, the future of the Clean Development Mechanism, and UN Program on Reducing Emissions from Deforestation and Forest Degradation (REDD).

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This post was written by Rose Standifer.

California has moved one step closer to implementing a comprehensive cap-and-trade program for greenhouse gas (GHG) emissions. On Tuesday, November 24, 2009, the California Air Resources Board (CARB) released a preliminary draft of regulations for a GHG cap-and-trade program. The regulations are far from complete. Key components of the program, such as how to allocate emission allowances, have not yet been developed. CARB will be holding a public workshop to discuss the preliminary draft on Monday, December 14, 2009 and will be accepting comments on the preliminary draft through Monday, January 11, 2010. An updated draft will be issued in Spring 2010, with the goal of issuing final regulations in September 2010 and launching the cap-and-trade program on January 1, 2012.

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