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

This post was written by Lorraine Campos and Amy Koch.

Coming soon: Most of the U.S. government's future acquisitions will have to be green and environmentally sustainable. In this Reed Smith alert, we discuss a recently issued interim rule (PDF) that would require federal agencies to conduct their environmental, transportation, and energy-related activities in an environmentally, economically, integrated, efficient, and sustainable manner. The interim rule would seek to lower greenhouse gas emissions from sources owned or controlled by federal agencies and otherwise promote the creation of a "clean energy economy." In addition, the interim rule would require federal agencies to leverage agency acquisitions to foster markets for sustainable technologies, materials, products, and services by ensuring that 95 percent of new contract actions, including task and delivery orders, for products and services are energy-efficient, water-efficient, biobased, environmentally preferable, non-ozone depleting, contain recycled content, or are non-toxic or less-toxic alternatives. Federal agencies are also required to implement high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices. On May 31, 2011, the U.S. Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration issued this interim rule amending the Federal Acquisition Regulation (FAR) by implementing Executive Orders 13514 and 13423.

The interim rule (PDF) should further open up opportunities for contractors with sustainable technologies, materials, products, and services to sell to federal agencies. Contractors with strong views on these FAR changes should prepare comments and submit them prior to August 1, 2011, to ensure that their views are considered. Reed Smith attorneys, including the authors of this post and more detailed alert, are tracking changes to the FAR as they evolve.

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This post was written by Jennifer Smokelin.

Yesterday, in American Electric Power v. Connecticut, the U.S Supreme Court held that the Clean Air Act, which authorizes the U.S. Environmental Protection Agency (USEPA) to limit emissions of carbon dioxide from power plants, displaces any federal common law right to seek abatement of carbon dioxide emissions from power plants. Somewhat surprisingly, the U.S. Supreme Court, because it split 4-4, let stand the Second Circuit Court of Appeals' determination that it had jurisdiction over nuisance claims arising from carbon dioxide emissions. The split means that courts in that circuit continue to have jurisdiction to hear nuisance claims arising from carbon dioxide emissions. The ruling, however, does not apply to other federal circuits and thus it remains an open question outside the Second Circuit.

The case was remanded to the Second Circuit on the issue of plaintiffs' claims under state nuisance law. The Second Circuit did not reach those claims because it held that federal common law governed. In light of the Supreme Court's holding that the Clean Air Act displaces federal common law, the availability of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act, and the issue of preemption was left for consideration on remand. Stay tuned.
 

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This post was written by David Wagner.

Last week, we discussed recent international and U.S. developments related to greenhouse gas regulation, and here are the slides and audio from the event. In particular, we addressed:

• How the uncertain future of the Kyoto Protocol and the Clean Development Mechanism affect U.S. business (You can also find details on this issue here)
• What your business needs to know for compliance and planning related to step 2 of USEPA's greenhouse gas Tailoring Rule
• Implications of the court's "cap and trade" ruling in Association of Irritated Residents v. California Air Resources Board
• Developments in state courts including upcoming decisions on insurers' obligation to defend and/or indemnify covered insureds for public nuisance, and other types of claims based on third-party allegations of damages from climate change
   

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This post was written by Jennifer Smokelin.

After a mid-year status meeting in early June, it is clear that the 192 or so parties to the international climate change convention's 17th Conference of the Parties (COP17) in South Africa this November have their work cut out for them…and the future of the Kyoto Protocol and the Clean Development Mechanism (CDM) is in limbo.

Following the mid-year meeting, most pundits agree that, after the Kyoto Protocol's first compliance period ends in 2012, a "regulatory gap" will result. In other words, there will a period of some unknown duration where there will be no legally binding, concrete greenhouse gas (GHG) mitigation commitments applicable to parties to the Kyoto Protocol. This will be the case even if, by some feat of negotiations, the parties are able to reach agreement regarding post-2012 compliance under the Kyoto Protocol in South Africa. A "regulatory gap" will occur because an agreement by COP17 parties would still require ratification by all parties to the United Nations' climate change convention (UNFCCC) and the one year time period until the first compliance period ends in 2012 is not enough time for ratification (keep in mind that ratification of the Kyoto Protocol itself took 7 years!).

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This post was written by Jennifer Smokelin.

On June 13, the U.S. Environmental Protection Agency (USEPA) indicated that it would take additional time to review input on proposed greenhouse gas emissions limits on New Source Performance Standards for new and existing power plants. The Agency stated that it will propose the new rules by September 30, 2011, instead of the original deadline of July 26. USEPA still plans to finalize the rules in late May 2012.

New Source Performance Standards are technology-based emissions limits issued under Section 111 of the Clean Air Act that apply to new and in some cases existing facilities in a specific industrial sector. NSPSs are a set of rules distinct from (and potentially broader than) the Tailoring Rule, the set of regulations now in effect to control greenhouse gases from large industrial sources. The proposed NSPS will apply to all sources within a source category and, in this case, the source category is power plants. Currently, under the Tailoring Rule, USEPA only requires the largest industrial facilities to obtain prevention of significant deterioration permits under new source review provisions of the Clean Air Act when they expand or make modifications that increase emissions. Those permits require the facilities to install best available control technology, which is determined for each individual facility, while the NSPS impose uniform emissions limits for the industry nationwide.

The extension will also not affect USEPA's deadline to propose performance standards for petroleum refineries by December 15. As we discussed on the blog in December 2010, this is a separate settlement agreement that requires USEPA to issue the final petroleum refinery rule by November 15, 2012 (See American Petroleum Institute v. EPA, D.C. Cir., No. 08-1277, settlement reached December 23, 2010).

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This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania State Senator Joe Scarnati (R) expanded upon a bill he introduced last month, Senate Bill 1100, which proposes to levy a $10,000 base impact fee on natural gas drillers in the Marcellus Shale. Senator Scarnati's expansions provided additional details for how the money collected from the fee would be distributed and how penalties for non-compliance would be assessed. Under the new version of SB 1100, the majority of the funds obtained from the fee are to be distributed among local counties, municipalities, and conservation districts. A portion of the funds would also be used to address statewide infrastructure and environmental impacts. The bill provides for impact fees to be retroactively assessed, meaning that drillers would be responsible for paying fees for last year's production. Bill opponents have expressed concern that the bill would chill development in the Marcellus. The Pennsylvania Senate Environmental Resources and Energy Committee will consider SB 1100 on June 14.

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This post was written by David Wagner.

On May 27, the European Council, which represents the governments of EU Member States, revised the Directive on the Restriction of Hazardous Substances in Electrical and Electronic Equipment (RoHS Directive), and extended a ban on certain hazardous substances to a wider range of products, including medical devices, electronic toys, electrical appliances, cables, and spare parts. First adopted in 2003, the RoHS Directive bans six hazardous substances in electrical and electronic equipment, including lead, mercury and cadmium. With the amendment, the ban will now in principle apply to all electrical and electronic equipment as well as to cables and spare parts. Certain transitional periods are provided for, e.g., monitoring and control devices and medical devices will be covered in three years, in vitro medical devices in five years and industrial control appliances in six years. There are also a few exceptions such as photovoltaic panels that produce energy from solar light and energy-saving light bulbs. EU countries are required to adopt the revised RoHS legislation into their national legal codes within 18 months.

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This post was written by David Wagner.

It's time for Reed Smith's (free) quarterly climate change report. Please join us via telephone on Thursday, June 16, 2011 from 12 p.m. to 1 p.m. EDT for a regulatory update on significant international, national and state issues concerning climate change and the future of greenhouse gas regulation. The topics are:

• International update: how the fate of the Clean Development Mechanism and the Kyoto Protocol affect U.S. business
• USEPA's greenhouse gas Tailoring Rule - Step 2: what your business needs to know for compliance and planning
• Implications of the court's "cap and trade" ruling in Association of Irritated Residents v. Cal. Air Resources Board
• State court update: upcoming decisions on insurers' obligation to defend and/or indemnify covered insureds for public nuisance, and other types of claims based on third-party allegations of damages from climate change
   

If you would like to attend this teleseminar, please email Sandy Petrakis.

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This post was written by David Wagner.

On May 16, the U.S. Department of Energy (DOE) announced that it will commit $25 million over the next five years to support the U.S.-India Joint Clean Energy Research and Development Center (JCERDC). This fall, DOE intends to begin awarding the funding to U.S. companies and other organizations involved in: (1) building energy efficiency (2) second generation biofuels, and (3) solar energy research and development. Together the United States and India intend to invest $100 million in public and private funds in JCERDC consortia. Click here for Reed Smith's summary of the program and possible opportunities.

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