USEPA Postpones Public Hearing on Proposal to Take Over Certain States GHG Air Permitting Programs

This post was written by Jennifer Smokelin and David Wagner.

On August 23, 2010, the U.S. Environmental Protection Agency (USEPA) postponed the public hearing on its plan to take over greenhouse gas (GHG) permitting programs related to construction or modification projects. The hearing was scheduled to be held in Arlington, VA on August 25, 2010, and was delayed because the draft rule has not yet been published in the Federal Register. USEPA has not set a new date for the hearing. As we discussed in a blog post last week, USEPA has proposed two rules to fill gaps in 13 state permitting programs that do not allow for the regulation of GHG emissions from industrial sources. The first proposed rule seeks to allow states that are not prepared to regulate GHGs to revise their State Implementation Plans. The second rule outlines USEPA's plan to establish a Federal Implementation Plan that would take over permitting programs in states that do not meet the requirements by next January, when USEPA’s Tailoring Rule would be in effect.

Regulated Entities in Allegheny County (PA) and Certain California Counties, Be Aware: USEPA May Take Over GHG Air Permitting Programs Related to Construction or Modification Projects

This post was written by Jennifer Smokelin and David Wagner.

Here's the issue:  Certain larger emission sources of greenhouse gases (GHGs) will be subject to permitting requirements for planned construction projects starting January 2, 2011.  In 13 states, the permitting programs (known as the Prevention of Significant Deterioration (PSD) permitting program) do not apply to sources of GHGs.  Thus, emission sources in those states would be unable to obtain a PSD permit that covers GHG emissions, and would potentially be unable to undertake construction or modification projects on or after January 2, 2011.  The states are Alaska, Arkansas, Connecticut, Florida, Idaho, Kansas, Oregon, Texas, and portions of California, Arizona, Kentucky, Nebraska, and Nevada.

Here's USEPA's proposed solution:  The Agency recently proposed two rules that would fill the gap in the permitting programs for these 13 states: (1) the SIP call and (2) the FIP.  Under the first proposed rule, the U.S. Environmental Protection Agency (USEPA) would issue a "SIP call," requiring the 13 states to revise their State Implementation Plans (SIPs).  According to USEPA, the PSD program in these jurisdictions is "presumptively inadequate" because they do not allow for the regulation of GHG emissions. All other states would be required to review their rules and inform USEPA if they would not be able to issue PSD permits for greenhouse gas emissions. 

Under the second rule, USEPA proposes to establish a FIP - a Federal Implementation Plan for the 13 "presumptive inadequate" states, and for any other state in which USEPA determines that the state PSD program does not meet requirements for regulation of GHGs. Only the states deemed by USEPA to be inadequate would need the federal plan.  In other words, in any states that do not update their regulations within 12 months after USEPA signs the final action, the second proposed rule would give the Agency the authority to take over until the state can assume the responsibility.

What this might mean to regulated entities:  A state that has to amend its rules, especially the 13 "presumptive inadequate" states, would likely have difficulty making the changes by USEPA's deadline, which is within 12 months after USEPA signs the final action.  If USEPA steps in as planned, new sources and modification projects might be unusually delayed while USEPA works through the GHG portions of permitting applications.

What this might mean in Allegheny County and most California counties:  It's hard to say.  Allegheny County and most of the Air Quality Management Districts in California are in a "grey area" - that is, they are not listed on either the Presumptive SIP Call or the Presumptive Adequate Lists.  USEPA has determined that these jurisdictions (among others) do not have an approved PSD SIP.  See additional discussion below.

What's next:  The two rules have not yet been formally proposed with publication in the Federal Register, and comments on the rules would be due 30 days after publication.  USEPA has scheduled a public hearing on the matter for August 25, 2010 in Arlington, Virginia.

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The Weakest Link in Greenhouse Gas Regulation? USEPA's Tailoring Rule

This post was written by Jennifer Smokelin.

Implementing the Environmental Protection Agency’s (USEPA’s) regulation of greenhouse gases (GHGs) under the Clean Air Act (CAA) is a three link chain, and each link in the chain is necessary and determinative of the success of the program as a whole. If any link fails, so does USEPA’s ability to regulate GHGs under the CAA. The three links are: (1) the Endangerment Finding; (2) the Tailoring Rule; and (3) the Best Available Control Technology (BACT) guidance. Previous articles in this blog and other blogs as well as teleseminar presentations by Reed Smith’s Environmental Team have discussed the likelihood of success to challenges to the Endangerment Finding. This post will briefly describe challenges to what is likely the weakest link in USEPA’s GHG regulation chain: the Tailoring Rule.

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Deadline Time for the UK's Carbon Reduction Commitment

This post was written by Siobhan Hayes and Indeg Kerr.

The latest Government Press Release shows that 1,299 businesses have registered under the UK’s Carbon Reduction Commitment (Energy Efficiency) Scheme (‘CRC’). The Government’s own estimate is that 5,000 businesses will have to register and comply in full with the CRC. The deadline for registration is 30 September 2010 but the process of registration may take weeks. This posting addresses registration issues and the consequences of failing to register.

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Climate Change Legislation is Dead. Long Live Climate Change Regulation!

This post was written by Larry Demase, Jennifer Smokelin and David Wagner.

Although an energy bill is now on the Senate floor, it is limited to energy conservation and issues related to the oil spill. It does not include a price on carbon in the form of cap and trade for any sector, and we are unlikely to see comprehensive climate legislation in September or later this year. So now what? Congressional failure to act now or later in 2010 means that, on the federal level, the U.S. Environmental Protection Agency ("USEPA") will step in and use its authority under the Clean Air Act to regulate greenhouse gases ("GHGs") from the utility, transportation and industrial sectors, and there is a small possibility that such regulation by USEPA will include a cap-and-trade program. To be sure, USEPA has already taken several steps to regulate GHGs. 

The following post discusses what will likely come out of Congress and USEPA's ongoing efforts to enact measures that regulate GHGs.

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Follow-up on Reed Smith's Quarterly Climate Change Report

This post was written by David Wagner.

If you missed Reed Smith's Quarterly Report on Climate Change, feel free to listen to an audio recording of the event. In addition, the slideshow presentation is available here. The report covered a lot of information and featured:

  • A status report on Congressional action on comprehensive climate regulation;
  • A summary of issues regarding the GHG cap-and-trade scheme under AB 32 in California;
  • An overview of the legal issues related to carbon capture and storage; and
  • A discussion of offset projects in the United States.

 

Canada to Develop Carbon Capture and Storage Standard

This post was written by David Wagner.

Seeking to gain public and regulator confidence in carbon capture and storage (CCS), in late June two Canadian standards organizations announced plans to develop the first industry-wide standard for the underground storage of captured carbon emissions. CSA Standards, a certification firm, and the International Performance Assessment Centre for Geologic Storage of Carbon Dioxide will work together to develop a CCS standard. The two groups said that the completed standard with technical and safety guidelines will be submitted to the Standards Council of Canada for recognition, and would be the world's first formally recognized CCS standard for underground storage. CSA Standards said that it hoped the new standard would also be used as the basis for an international standard endorsed through the International Organization for Standardization (ISO).

CCS technology can reduce carbon dioxide emissions from power plants and carbon emission-intensive industries, and a formally recognized national or international standard will work to improve public confidence in the safety of the long term storage of carbon dioxide. In particular, a carbon dioxide storage standard would help to ensure risks are identified and then addressed. A standard should also remain flexible to address site-specific characteristics and improvements, especially given that technical CCS expertise is still evolving.

Join Reed Smith for our Quarterly Climate Change Regulatory Update via Teleseminar on July 15

This post was written David Wagner.

Please join us for our Second Quarterly Report on Climate Change from 12 to 1 p.m. EDT on Thursday, July 15. In this one-hour teleseminar, returning speakers Larry Demase and Jennifer Smokelin, joined by Todd Maiden and David Wagner, will provide a regulatory update on significant international, national and state issues concerning climate change and the future of GHG regulation.

Following up on speculation regarding summer strategy for passing energy and climate legislation, planned topics include:

  • An inclusive status report on Congressional action with regard to comprehensive climate regulation (including the Kerry-Lieberman bill)
  • The status of the GHG cap-and-trade scheme under AB 32 in California
  • An update on the latest regulatory developments in Carbon Capture and Storage
  • Plus a special discussion titled, "Preparing to Build Offset Projects in the United States; Criteria and Lessons Learned from the CDM"

To register for the teleseminar, please click here.

U.S. Department of Energy Seeks Comment on Environmental Impact of Carbon Capture Projects in Texas and West Virginia

This post was written by David Wagner.

Indicating growing federal interest in carbon capture and storage, the U.S. Department of Energy (DOE) is seeking public comment on proposals to capture and store carbon dioxide emissions from electric power plants in Texas and West Virginia. In a June 2 notice, DOE announced that it intends to prepare an environmental impact statement on a plan to provide about $350 million for the Texas Clean Energy Project, a proposed combined power and chemical plant near Odessa, Texas, through the Clean Coal Power Initiative. The environmental impact statements will help the Department determine whether to provide funding for the project.

According to a another notice published on June 7, DOE intends to produce an environmental impact statement on a plan to provide up to $334 million for a West Virginia plant, about half of the total cost. The West Virginia project involves fitting the existing Mountaineer coal-fired power plant, operated by American Electric Power near New Haven, with carbon dioxide capture and storage. As with the proposed Texas project, the Department would provide funding for the project through the Clean Coal Power Initiative, a program to provide partial financing for new technologies that can help utilities reduce their emissions of sulfur dioxide, nitrogen oxide, mercury, and greenhouse gases from power plants.

Information on public meetings and comment submission deadlines is available in the notices.

Government Assessment Underscores Pennsylvania's Carbon Dioxide Storage Potential and the Need for Substantive Legal Changes

This post was written by David Wagner.

Pennsylvania’s Department of Conservation and Natural Resources (DCNR) recently posted two reports concluding that, with substantive changes to laws governing subsurface ownership rights and long-term liability issues, Pennsylvania’s geology could store carbon dioxide in a cost-competitive and manageable way. The reports also concluded that another key step is to identify specific storage areas.

A carbon capture and storage (CCS) network would collect carbon dioxide from coal-fired electricity generating plants and other industrial sources, compress it into a liquid, and then transport it through pipelines deep underground where it would be injected into the rock formations or other suitable geologic features.

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The UK's Carbon Reduction Commitment: Now Is the Time

This post was written by Siobhan Hayes and Indeg Kerr.

We wrote a variety of blog postings on the UK’s Carbon Reduction Commitment (Energy Efficiency) Scheme (‘CRC’) whilst the Government was consulting on the draft Regulations. A lot of the information must have seemed unimportant prior to April 2010 but now the CRC Energy Efficiency Scheme Order 2010 (‘CRC Order’) is in force and many businesses will need to evaluate whether, how and to what extent they must comply with the CRC. 

The CRC is aimed at organisations which are not energy intensive and will cover many sectors including offices, retailers and hotels. The CRC affects overseas companies that do business in the UK and applies whether or not they do so using UK subsidiaries. Private equity investors have to determine how to manage their CRC liabilities.

This posting covers how to determine whether the first phase of the CRC Order is going to apply to your business and provides pointers on what to do next.

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If Congressional Climate and Energy Legislation Fails to Pass in the U.S., What Happens?

This post was written by Phil Lookadoo and Jennifer Smokelin.

The future of greenhouse gas (GHG) regulation in the United States, as well as the future mix of electric power generation sources, is linked to the fate of climate and energy legislation in Congress. With all eyes on the Senate recently released Kerry-Leiberman comprehensive climate and energy legislation and what by most accounts is its slim chances for passage, let’s consider the possibility that Congress will fail to pass climate or energy legislation.

If that is the case, this does not mean no regulation of greenhouse gases and no energy reform. It simply moves the discussion to another government branch, namely, the Executive Branch, and in particular the U.S. Environmental Protection Agency (USEPA) and the Federal Energy Regulatory Commission (FERC). In other words, if Congressional climate and energy legislation fails to pass, executive branch initiatives gain in importance, and these initiatives will proceed apace regardless of Congressional inaction.

A Shift to USEPA Regulation of GHGs

USEPA can be expected to move forward with regard to regulating GHGs from stationary sources. On December 7, 2009, in compliance with the US Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), USEPA issued its Endangerment Finding, opening the door to USEPA regulation of GHGs under the existing Clean Air Act (CAA). Although the Endangerment Finding is currently being challenged in the Federal Circuit, challenges to the Endangerment Finding will not likely impede further EPA action to regulate GHGs under the CAA. However, challenges to these USEPA further actions are likely.

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New Climate Bill Introduced in U.S. Senate

This post was written by Ariel Nieland.

After much anticipation, Senators Joe Lieberman (I-Conn.) and John Kerry (D-Mass.) finally unveiled their comprehensive energy and climate bill, known as the American Power Act, in a press conference yesterday afternoon. The bill's release was delayed by several weeks after prior co-sponsor Senator Lindsey Graham (R-SC) withdrew his support following a dispute over unrelated immigration reform legislation. Below are some of the bill's key features:

  • Aims to reduce greenhouse gas emissions by 17% from 2005 levels by 2020 and 83% by 2050, targeting heavy industry, power plants and transportation infrastructure.
  • Removes disincentives for natural gas generation at merchant plants in order to level the power sector playing field, and plans to help guide state regulators by requiring public disclosure of chemicals used in natural gas production.
  • Places a cap on carbon emissions for producers of more than 25,000 tons of carbon pollution annually, which includes approximately 7,500 U.S. companies. Producers with a mandatory cap may trade carbon credits in the primary market, while the secondary market will be open to all participants. Carbon credits would start at $12 per ton.
  • Provides financial incentives for a variety of energy producers, including regulatory risk insurance and loan guarantees for a dozen new nuclear plants; $2 billion a year for coal technologies that can capture and store greenhouse gas emissions, such as carbon capture and storage; and $7 billion a year for improvements to transportation infrastructure and efficiency.
  • Encourages offshore oil drilling while providing states with veto power over drilling in neighboring states along with the ability to opt out of any drilling within 75 miles of the state's own shoreline. States that oppose drilling could pass laws blocking the activity, while states that choose to drill may retain 37% of federal royalties raised.
  • Preempts any state-operated cap-and-trade programs already in existence, and compensates states for any revenue lost as a result.
     

New Climate Bill Likely to be Unveiled in the U.S. Senate Next Week

This post was written by Ariel Nieland.

Based on news reports, Senator John Kerry (D-Mass.), along with Senator Lindsey Graham (R-S.C.), and Senator Joseph Lieberman (I-Conn.) plan to release a revised climate bill aimed at cutting U.S. industry emissions of carbon dioxide and other greenhouse gases associated with global climate change. It may be unveiled as early as next week in time for Earth Day on April 22. A key issue raised in prior climate bills, which the new bill is not expected to address, is the creation of a national "cap and trade program" for managing greenhouse gases, such as the ones currently in place in the European Union to reduce greenhouse gases and in the U.S. to control acid rain-causing sulfur dioxide. The new climate bill will, however, likely provide for an overall cap on greenhouse gas emissions for certain utilities, with other industries to be phased in over time, as well as "a modest tax" on transportation fuels. The bill is also expected to incentivize construction of nuclear power plants, carbon capture and storage facilities, renewable energy sources such as wind and solar power, as well as oil and gas drilling.
 

Cash For Climate: Copenhagen Green Climate Fund Update

This post was written by Jennifer Smokelin.

Debate still rages as to the significance of the Copenhagen Accord, the non-binding agreement noted by the UNFCCC at the end of the COP in Copenhagen in December. Many leaders of the process, including outgoing U.N. climate chief Yvo de Boer, have downplayed the chance of the Accord folding into a binding deal in Cancún, saying such an agreement will be unlikely until late 2011. But U.S. deputy climate envoy Jonathan Pershing defended the Accord recently in Bonn, where negotiators met this past weekend to begin setting the table for this year's COP in Cancún, Mexico, in November.

Climate adaptation financing is one of the most direct impacts of the Accord. Under Paragraphs 8 and 9 of the Accord, wealthy countries have committed to sending $100 billion a year by 2020 in climate funds to at-risk nations. How those funds will be raised and governed remains an open question. A high-level advisory group to mobilize the climate change financing was assigned by United Nation Secretary-General Ban Ki-moon. Its mission is to mobilize financial resources through the development of practical proposals to significantly scale up both short and long-term financing for mitigation and adaptation strategies in developing countries. The Accord states in Paragraphs 8 and 9 that financial support is to be given to developing countries to help them combat climate change between 2010 and 2020, with “priority” to be given to the “most vulnerable developing countries” such as the least developed countries, small island developing states, and Africa. Funding will be secured from various sources including governments, the private sector, bilateral and international institutions. The group will also investigate how to jump-start the mobilization of new and innovative resources from both the public and private sector.

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USEPA Proposes Mandatory GHG Reporting for Facilities that Inject CO2 Underground

This post was written by Jennifer Smokelin.

On March 22, 2010, USEPA signed a proposed rule for the mandatory reporting of greenhouse gases (GHGs) from facilities that inject carbon dioxide underground for the purposes of geologic sequestration or enhanced oil and gas recovery. Geologic sequestration is the long-term containment of carbon dioxide in subsurface geologic formations.

USEPA is proposing that all facilities that inject CO2 for the purpose of long-term geologic sequestration or to enhance oil and gas recovery report basic information on CO2 injected underground. In addition, geologic sequestration facilities that inject CO2 specifically for the purpose of long-term containment in subsurface geologic formations would also be required to:

  • Develop and implement an USEPA approved site-specific monitoring, reporting, and verification (MRV) plan.
  • Report the amount of CO2 geologically sequestered using a mass balance approach.
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It's a Gas, Gas, Gas. . . USEPA's Proposes GHG Reporting from Oil and Gas Facilities

This post was written by Jennifer Smokelin.

The U.S. Environmental Protection Agency (USEPA) is proposing to include additional emissions sources in its first-ever national mandatory greenhouse gas (GHG) reporting system. On March 22, 2010, USEPA signed a proposed rule for the mandatory reporting of vented and fugitive methane (CH4) and carbon dioxide (CO2) emissions from petroleum and natural gas industry facilities emitting 25,000 metric tons or more of carbon dioxide equivalent per year. USEPA estimates the total cost of reporting to the private sector would be about $60 million for the first year and $25 million in subsequent years. This translates to an estimated average cost of $18,000 per facility for the first year and $8,000 in subsequent years.

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Recent Reforms to UN's Clean Development Mechanism

This was written by Jennifer Smokelin and David  Wagner.

Overshadowed by the activities in the final few days at the Copenhagen climate change conference, the UN agreed to revise some elements of its Clean Development Mechanism (CDM). Despite ongoing concerns about the long-term (post-2012) future of CDM, these reforms are significant.

Perhaps most significantly, the CDM reforms direct the CDM Executive Board to establish new procedures for stakeholders to appeal decisions. This on the heels of the CDM Executive Board’s controversial recent decision to reject applications from ten Chinese wind energy projects. The Executive Board has also been granted permission to streamline registration and issuance procedures for emission reduction projects and provide new funding to accelerate the development of CDM projects in countries with fewer than ten CDM approved projects in operation. Following a number of investigations which found that some of the firms tasked with independently verifying that CDM projects deliver real emission cuts had been cutting corners, the reforms also call for an improved system of “continuous performance monitoring” of these third-party certifiers.

Climate Change After Copenhagen

This post was written by David Wagner.

Reed Smith attorney Jennifer Smokelin participated in a seminar sponsored by the Climate Decision Making Center (CDMC) on March 8, 2010 and addressed her time spent at the United Nations' Framework Convention on Climate Change (UNFCCCC or COP 15) in December 2009. Jennifer's presentation, which is available here, discussed COP 15 and the likely affect of the Copenhagen Accord from the perspectives of two stakeholder groups: business and industry non-governmental organizations (BINGOs) and the general citizenry. In particular, Jennifer analyzed the commitments offered thus far under the Copenhagen Accord, compared them to commitments under the Kyoto Protocol and what that means for business and the environment, and opined regarding likely US actions to implement the Copenhagen Accord.

The CDMC is anchored at Carnegie Mellon University's Department of Engineering and Public Policy. It was founded in 2004 with a five-year, $6.9 million grant from the National Science Foundation. Collaborating investigators and graduate students are located at the University of British Columbia, the University of California at Berkeley, the University of Calgary, Oxford University, Stanford University, Pacific Risks, and The Wharton School at the University of Pennsylvania. At the CDMC, researchers are studying the limits in our understanding of climate change, its impacts, and the strategies that might be pursued to mitigate and adapt to change.
 

Franchisors: Are You Prepared for the UK's Carbon Reduction Commitment?

This post was written by Siobhan Hayes.

In earlier postings we introduced the UK’s Carbon Reduction Commitment (Energy Efficiency) Scheme (“CRC”). From 1 April 2010 the CRC Regulations will apply and many franchisors will be responsible for the carbon emissions of their franchisees. Franchisors will need information from their franchisees and may incur costs under the CRC that may not be easily recovered from franchisees.
 

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Reed Smith Discusses Copenhagen in The National Law Journal

This post was written by Larry Demase and Jennifer Smokelin.

In this article published in The National Law Journal, Reed Smith attorneys and Copenhagen attendees Larry Demase and Jennifer Smokelin discuss outcomes from the United Nations' climate change conference while focusing on what may happen to the domestic energy sector. They emphasize that, despite the questions surrounding international climate negotiations, the Obama administration will continue to push to reinvent the domestic energy sector, if for no reason other than economic stimulus. This push is reinforced by the recent proliferation of "energy security" and "green jobs" bills proposed in Congress. As for changes, they also explain that, during the next 10 to 20 years, we can expect a threefold increase in supply from renewables such as wind and solar. They also look for coal-supplied electricity to trickle off during the next 40 years but, assuming a viable carbon capture and storage program, in the near term significant production of electricity from coal will remain.

 

Who's in Accord with the Copenhagen Accord - and What Does It Mean?

This post was written by Larry Demase, Jennifer Smokelin and David Wagner.

January 31, 2010 marked the official deadline for parties to the Copenhagen Accord to submit their respective plans for reducing greenhouse gas emissions. However, this was not considered a “hard deadline” by the UNFCCC Secretariat and thus responses still trickle in. To date, 95 countries have officially agreed to “associate” with the Accord, with certain emitters (arguably key emitters) also including emission reduction actions in their statement to the UNFCCC. Some big global emitters have signed on to the Accord – the US Climate Action Network (USCAN) indicated that as of the date of this posting, countries representing 80.8% of global emissions are in accord with the Copenhagen Accord. 

 

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It's Official: SEC Adopts Interpretive Guidance About Climate Change for Public Companies

This post was written by  David Mittelman, Eulalia Mack, Todd Maiden, Lou Naugle, Jennifer Smokelin and J. Todd Arkebauer.

A week after the Securities and Exchange Commission (the "SEC") voted to adopt interpretive guidance addressing public company disclosure standards in connection with climate change, they made it official. On February 2, 2010, the SEC issued the interpretive guidance. The guidance reflects an effort by the SEC to provide companies with greater clarity about existing obligations under the federal securities laws that relate to climate change and its consequences. Reed Smith updated its client bulletin to provide some more information on the key disclosure areas.
 

 

SEC Adopts Interpretive Guidance About Climate Change for Public Companies

 This post was written by David Mittelman, Eulalia Mack, Todd Maiden, Lou Naugle, Jennifer Smokelin and J. Todd Arkebauer.

On January 27, 2010, the Securities and Exchange Commission ("SEC") voted to adopt interpretive guidance addressing public company disclosure standards in connection with climate change. While this interpretive guidance is not intended to impose new standards, it does serve as an important reminder for public companies, potentially as part of their disclosure controls and procedures, to assess whether climate change may have a material impact upon their business and financial condition. For details, go to Reed Smith's client bulletin that discusses this development.

Among the disclosure areas the forthcoming interpretive guidance will address, according to the SEC press release, are the following:

  • Impact of legislation and regulation. When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material.
  • Impact of international accords. A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
  • Indirect consequences of regulation or business trends. A company should consider, for disclosure purposes, the actual or potential indirect consequences it may face because of climate change-related regulatory or business trends.
  • Physical impacts of climate change. Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

Given the SEC's high-profile stamp of authority on this topic, public companies should expect a greater focus by the SEC staff and third-party observers in reviewing and evaluating disclosure practices about the material impact of climate change.

Climate Change Regulation After Copenhagen: Now What? For Starters, Consider Turning Your GHG Emission Reductions into an Asset

This post was written by Larrry Demase, Jennifer Smokelin, Todd Maiden and David Wagner.

In this client update, Reed Smith attorneys (including COP15 delegates Larry Demase and Jennifer Smokelin) reflect on what transpired in Copenhagen and offer some advice regarding what regulated entities should do next.

Among other issues, the update discusses how to position your GHG-intensive business to minimize compliance costs in a carbon-constrained economy. It also addresses how to position your GHG emission reduction credits to serve as an asset. For example, regulated entities should make sure they have documented and verified all of the GHG credits to which they are entitled. One group of potential GHG credits that comes to mind after the economic downturn last year are credits available as a result of reduced GHG emissions. Consider: Have your facilities reduced GHG emissions in the past year, because of plant idling or reduced production capacity? Have you reduced your carbon footprint measurably and permanently? Or are you beginning to reduce your GHG emissions to improve efficiency? If so, some of these reductions in GHG emissions may be eligible for credits. These credits, which must be properly documented and verified, could potentially be sold or traded on various mandatory and voluntary markets (EU-ETS and/or the Chicago Climate Exchange, for example), or banked for compliance with the inevitable domestic cap-and-trade program.

In short, there may be opportunity here. Reed Smith can work with you to determine which GHG reductions at your facilities are eligible for credits, and help plan how to maximize the potential opportunities, or even how to profit from these credits.

The Copenhagen Accord and COP-15: Brokenhagen or Some Version of Hopenhagen?

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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The Legal Classification of UK's CRC Emissions Allowances

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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Day 12: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 11: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 10: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 9: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 8: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 5: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 4: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 3: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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Day 2: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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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USEPA Announces Greenhouse Gas Endangerment Finding

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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Day 1: Report from Reed Smith Delegates in Copenhagen at the United Nations Climate Change Conference

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.

Exclusive Reports by Reed Smith Delegates From the Climate Summit in Copenhagen Will Be Posted on This Blog Beginning on Monday, December 7.

 

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).

California Air Resources Board (CARB) Releases Preliminary Draft of Cap-and-Trade Regulations

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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USEPA Publishes Final Mandatory Greenhouse Gas Reporting Rule

This post was written by David Wagner.

The final rule implementing USEPA's Mandatory Greenhouse Gas Reporting Program was published in the Federal Register on October 30, 2009, and the rule will become effective on December 29, 2009.  For more information and an analysis of the rule, please review our earlier posting.

UK's Carbon Reducation Commitment (CRC) News

This post was written by Tim Foster and Siobhan Hayes.

In earlier postings we have introduced the UK’s Carbon Reduction Commitment (“CRC”) which has been the subject of public consultation. The Government issued their policy decisions recently and a number of things will change when the Regulations come into force next April. To restate, headlines reporting the CRC was deferred were wide of the mark and the CRC will still start to apply in April 2010. To emphasise the impact of the CRC the first thing to note is that it will now be called the CRC Energy Efficiency Scheme. Energy efficient businesses are to be rewarded for their good behaviour. 

This is a note on the main changes we expect to see when the next draft of the Regulations is published towards the end of this year.

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USEPA Finalizes First Nationwide Mandatory Greenhouse Gas Reporting Requirements

This post was written by Rose Standifer and Jennifer Smokelin.

Mandatory reporting of greenhouse gases (GHG) is now required nationwide. On Tuesday, September 22, 2009, the U.S. Environmental Project Agency (EPA) issued its Final Mandatory Reporting of Greenhouse Gases Rule. The final rule requires mandatory reporting of GHG from most large GHG emissions sources in the United States. The stated purpose of the rule is to collect accurate and timely emissions data to inform future policy decisions. Reporting requirements begin on January 1, 2010. Initial reports, covering emissions during 2010, are due on March 31, 2011.

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CRC Performance League Tables for UK Businesses

This post was written by Siobhan Hayes and Tim Foster.

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 is a note on the performance league tables that will rank all CRC participating organisations in terms of energy efficiency. The more efficient will receive bonus payments while the less efficient will be penalised, under a system of “revenue recycling”, which is explained below.

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CRC in the UK Hotels Sector

This post was written by Siobhan Hayes, Indeg Kerr and Tim Foster.

In earlier postings we have introduced the UK’s Carbon Reduction Commitment Energy Efficiency Scheme(CRC). This posting is a brief look at how the hotels sector will be affected by the CRC.

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CRC Penalties for UK Businesses

This post was written by Siobhan Hayes.

In earlier postings we introduced the UK’s carbon reduction commitment (CRC) and we have considered which companies need to comply. In this posting we are covering the penalties that UK businesses will face if they fail to comply with various reporting requirements and fail to buy and surrender carbon emission allowances by the relevant deadline.

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In the U.S., the House Passes The American Clean Energy and Security Act, First-Ever Congressional Bill To Address Climate Change

This post was written by Todd O. Maiden, Eric M. McLaughlin, and Amy E. Coren.

Despite heavy criticism from House Republicans and generally tepid support from House Democrats, the latest bill on climate change initiatives, H.R. 2454: The American Clean Energy and Security Act (ACESA), garnered just enough votes to move forward in the legislative process, passing 219 to 212. Having passed the House, the next stop for ACESA is the U.S. Senate for consideration.


Introduced by U.S. House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and House Energy and Environment Subcommittee Chairman Edward Markey (D-MA), H.R. 2454 calls for an economy-wide greenhouse gas (GHG) cap-and-trade system and various complementary GHG reduction measures, while also providing for federal investment in the areas of clean energy and energy efficiency programs, carbon capture and sequestration technologies, and the research and development of renewable technologies.
 

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Carbon Reduction Credit: What UK Businesses Need to Know Now

This post was written by Siobhan Hayes, Indeg Kerr, and Tim Foster.

In earlier postings we’ve introduced the UK’s Carbon Reduction Commitment (Energy Efficiency) Scheme (CRC). All UK businesses with half hourly meters were sent letters from the Environment Agency (EA) introducing them to the CRC and the obligations the business will face. However, please note that letters went to the billing addresses for each relevant meter. The EA states that it does not know which parent company will be responsible for compliance with the CRC and that applies across the whole of the business of the UK group (covered in a previous posting). It is possible that your organisation has received a letter but there may be complications: it could have gone to a person who no longer works at the company; may be overlooked; or may not reach the right level of management. Even without the initial EA letter getting to the right people, businesses in the UK need to be prepared.

This posting covers the information to be gathered for the qualification year of 2008 and some practical steps to prepare for CRC compliance.

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The Impact of the UK's Carbon Reduction Commitment on Groups and Subsidiaries

This post was written by Tim Foster and Siobhan Hayes.

In 2010 the Carbon Reduction Commitment Order will require many UK businesses to measure and report on their energy consumption, to buy allowances to cover their carbon emissions and to pay significant penalties if they do not comply. The CRC was summarised in a recent Reed Smith posting.

Unlike previous legislation affecting EU carbon emissions (the Emissions Trading Scheme) the CRC does not apply to specific installations or individual companies in relation to their own emissions. It applies to the whole of the organisation in the UK. For companies doing business in the UK that means that the CRC applies to the relevant UK group as a whole. If the UK group is owned by a parent incorporated overseas the parent will have compliance duties in respect of its UK subsidiaries.

The rules are not straightforward and involve a raft of potentially confusing definitions and terms to describe participating and responsible entities.   This posting covers the key points on who has to comply:

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Why UK Businesses Cannot Ignore the Carbon Reduction Commitment (CRC)

This post was written by Indeg Kerr, Siobhan Hayes and Tim Foster.

UK businesses need to know their carbon footprint because in 2010 the Carbon Reduction Commitment Order will apply. Since our CRC posting in December 2008, draft regulations have been published and are now subject to public consultation. This remains a scheme where businesses using a substantial amount of energy will have to report on their energy consumption, buy carbon allowances based on projected carbon emissions for each scheme year then surrender them at the end of each year when energy use is known. A league table will be published by the Environment Agency (EA) who will administer the scheme showing the relative energy efficiency of all those in the program. The best performing businesses will receive a refund of some of the costs of the allowances plus a bonus but the worst performing businesses will pay a penalty.

Some industries are high intensity energy users and already have to comply with the EU’s Emissions Trading System. The CRC scheme will capture lower intensity energy users who used a significant amount of electricity in 2008 and may include large offices, chains of retail outlets, hotels, banks, chains of restaurants as well as industry.
This posting outlines the types of business that may need to comply with the CRC scheme, the basic requirements of the program, some cost issues, and next steps to consider.
 

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Dodging the Bullet: Advice to Facilities Whose Emissions May Be Under the Reporting Threshold of USEPA's Proposed Mandatory GHG Inventory Reporting Regulations

This post is written by Jennifer Smokelin.

EPA is proposing a rule to require mandatory reporting of greenhouse gas (GHG) emissions in the United States (the "Proposed GHG Rule"). EPA is developing this rule in accordance with the FY2008 Consolidated Appropriations Act, which was signed into law in December 2007. The Proposed GHG Rule would require reporting of anthropogenic GHG emissions covered under the United Nations Framework Convention on Climate Change (UNFCCC).

Almost all the literature set forth by EPA and commentators under this proposed regulation carefully considers the question, "Who would report?" But an equally important question—about which there is far less discussion—is, "How do you establish that you don't have to report?"

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USEPA Sends GHG Endangerment Finding to the White House

This post was written by Jennifer Smokelin.

Last Friday, the U.S. Environmental Protection Agency found that climate-warming greenhouse gases, including carbon dioxide, pose a danger to human health and welfare, according to the New York Times. EPA sent its finding to the Office of Management and Budget for review. Once the budget office clears the finding, it can be signed by Lisa P. Jackson, EPA’s Administrator, Lisa P. Jackson. There is also likely to be a public comment period on the proposed finding, but likely none that will prevent the endangerment finding from being finalized.

EPA has been charged for decades with regulating air pollutants under the Clean Air Act and, as the Supreme Court recognized in Massachusetts v. EPA (2007), GHG emissions are air pollutants subject to Clean Air Act regulations. An endangerment determination would confirm the Agency’s power, but also its obligation, to regulate greenhouse gases now.

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USEPA Proposes Rule On Mandatory GHG Reporting

This post was written by Jennifer Smokelin and Larry Demase.

On Mar. 10, EPA announced a proposed rule in response to the FY2008 Consolidated Appropriations Act (H.R. 2764; Public Law 110–161) that requires mandatory reporting of greenhouse gas (GHG) emissions from large sources in the United States.  In general, EPA proposes that both upstream production facilities such as fuel suppliers and downstream emitting sourcess of GHG are to report. Emission sources include electric generators, manufacturers of vehicles and engines, food processors, lime production facilities and facilities that emit 25,000 metric tons or more per year of GHG emissions.  Annual reports to EPA are required.  The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).  EPA is using its authority under the Clean Air Act to develop the rule and it states that the rule is relevant for determining  how to use Sections 111, 112 and 129 of the Clean Air Act  to establish standards for sources emitting GHGs.  EPA estimates that the expected cost to comply with the reporting requirements to the private sector would be $160 million for the first year.  In subsequent years, the annualized costs for the private sector would be $127 million. This rule will begin the process of shifting the focus of GHG regulation away from the states. 

The proposed rule will soon be published in the Federal Register under Docket ID No. EPA-HQ-OAR-2008-0508.  The proposed rule will be open for public comment for 60 days after publication in the Federal Register. Two public hearings will be held during the comment period.  Click here for a pre-publication copy of the proposed rule and preamble.
 

In the US, Federal Legislation on Cap and Trade: What to Expect

This post was written by Jennifer Smokelin.

 In President Obama's Feb. 24, 2009 address to Congress, he called on "Congress to send me legislation that places a market-based cap on carbon pollution." His address, coupled with the President's FY 2010 budget proposal, outlined the Administration's plans to develop a comprehensive energy and climate change plan to invest in clean energy, end our addiction to oil, address the global climate crisis, and create new American jobs that cannot be outsourced. After enactment of the budget, the Administration indicated it will work expeditiously with key stakeholders and the Congress to develop an economy-wide emissions reduction program to reduce greenhouse gas emissions approximately 14 percent below 2005 levels by 2020, and approximately 83 percent below 2005 levels by 2050. The Obama Administration anticipates that this program will be implemented through a cap-and-trade system, a policy approach that was used to regulate sulfur dioxide emissions and which significantly reduced acid rain at much lower costs than the traditional government regulations and mandates of the past. Through a 100 percent auction to ensure that the biggest polluters do not enjoy windfall profits, the government projects that this program would fund investments in a clean energy future totaling $150 billion over 10 years, starting in FY 2012. The balance of the auction revenues would be returned to public programs to assist families, communities, and businesses in the transition to a clean energy economy.

 Given this emphasis, we are likely looking at federal legislation this year in the form of a federal cap and trade program (although this may be delayed somewhat due to the economic crisis). Stay tuned to this blog for comments regarding what will it look like, what business opportunities to expect, and what you can do now to shape legislation.
 

USEPA to Reconsider Recent Interpretation on Carbon Dioxide Regulation

This post was written by Mark Mustian and David Wagner.

Only two months after issuing a memorandum interpreting which pollutants are covered (or not covered) by the federal Prevention of Significant Deterioration (PSD) Perrmit Program, EPA is reconsidering its approach.

On Dec. 18, 2008, Steve Johnson, the EPA Administrator under the previous administration, issued a memorandum that guided regulators on how to consider carbon dioxide emissions under the Prevention of Significant Deterioration (PSD) permitting program. The memo stated that EPA does not consider a pollutant (including carbon dioxide) to be "subject to regulation" until EPA has promulgated a regulation that requires emission controls. As a result, carbon dioxide would not be subject to emission limitations before a PSD permit was issued.

In a Feb. 17, 2009 letter to the Sierra Club, Lisa Jackson, EPA's new administrator, announced the Agency was opening up the memorandum for reconsideration and public comment. EPA specifically noted that the memo did not bind States issuing permits under their own authority, and that it should not be considered "the final word on the appropriate interpretation of Clean Air Act requirements". The letter added that the Agency will publish a notice of a proposed rulemaking on the matter in the near future.

 Click here for the original memo and Sierra Club letter.

A CAP-ital Idea: Business Opportunities for Covered Sources in a US Cap-and-Trade System

 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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California Air Resources Board Approves Climate Change Scoping Plan: Low Carbon Fuel Standard

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.

California Air Resources Board Approves Climate Change Scoping Plan: California Cap and Trade Program

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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California Air Resources Board Approves Climate Change Scoping Plan: Targeted Fees

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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California Air Resources Board Approves Climate Change Scoping Plan: Transportation

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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California Air Resources Board Approves Climate Change Scoping Plan: Renewable Portfolio Standard

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.

California Air Resources Board Approves Climate Change Scoping Plan: Energy Efficiency

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.

California Air Resources Board Approves Climate Change Scoping Plan

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.

Do You Know the Amount of Carbon Emitted by Your UK Business?

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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New York Governor Approves Two Green Building Laws For Residential And State Structures

This post was written by Eric M. McLaughlin and Keisha M. Williams.

In late September, New York became the latest state to give the green light to “green building,” after Gov. David Paterson signed two bills introducing green building performance standards for construction and renovation of New York state government buildings, and a Grants Program for green residential builds. The new laws aim to encourage and incentivize the construction of energy-efficient, sustainable buildings, using recyclable and environmentally friendly materials, and are in line with the governor’s “15 x 15” plan to reduce energy use by 15 percent of expected levels by 2015. New York’s new laws highlight the fact that buildings account for nearly 40 percent of the nation’s greenhouse gas emissions and more than 70 percent of its electricity consumption, and that these impacts can be reduced by regulations governing design and construction.

The State Green Building Construction Act (A. 2005) (State Building Act) will require all new state-owned buildings, and substantial renovations of existing state-owned buildings, to comply with green construction principles set forth in standards to be developed by the Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA). State agencies will also be required to prepare annual building performance reports containing information on their green credentials, including energy consumption, waste reduction, and how indoor air quality compares with set benchmarks. The State Building Act takes effect 180 days after signature, on or about March 25, 2009.

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Congress Enacts Five-Year Extension of Tax Incentives for Green Buildings

This post was written by Ruth N. Holzman, James R. Eskilson, Todd O. Maiden, Eric M. McLaughlin, and Jennifer Smokelin.

There’s good news for commercial building owners who have wanted to “go green,” but have been waiting to see whether the tax incentives for green buildings, set to expire at the end of 2008, would be extended. The historic financial rescue bill (H.R. 1424), signed by President Bush on Friday, Oct. 3, 2008, also included the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (“TEAMTRA”). Among the tax-extenders in TEAMTRA was a five-year extension of the tax incentives for “green” commercial buildings.

Internal Revenue Code Section 179D gives owners of commercial real property a tax break by allowing them to deduct the cost of certain energy-efficient property. It applies to both new construction and to retrofits of existing construction. Prior to TEAMTRA, this tax break only applied to property placed in service on or prior to Dec. 31, 2008. With the extension of this provision to Dec. 31, 2013, property owners now have sufficient time to design, construct and complete projects that will qualify for this tax break. Although numerous bills had been introduced in Congress that would have raised the amount deductible under Section 179D, TEAMTRA did not contain any increase in this amount. The deduction is still limited to the product of $1.80 multiplied by the square footage of the building.

For a brief overview of the Section 179D deduction for “green” buildings, see “New Tax Incentives for ‘Green’ Buildings Have Owners Seeing Green,” in The Critical Path, Fall 2006; for a more detailed discussion, see "New Tax Incentives for 'Green' Buildings Have Owners Seeing Green," in the ABA's The Construction Lawyer, Summer 2007.

California PUC and Energy Commission Release Joint Proposed Opinion on Strategies for Reducing GHG Emissions

This post was written by Todd O. Maiden and Rose L. Standifer.

On Sept. 12, 2008, the California Public Utilities Commission ("CPUC") and the California Energy Commission ("CEC") released their joint proposed opinion on strategies to help reduce greenhouse gas ("GHG") emissions and meet the goals of AB 32, the California Global Warming Solutions Act of 2006. The Proposed Final Opinion on Greenhouse Gas Regulatory Strategies, prepared jointly by CPUC President Michael Peevey, and CEC Chairman Jackalyne Pfannenstiel and CEC Commissioner Jeffrey Byron, provides recommendations, and outlines a variety of options for the California Air Resources Board ("CARB") to consider in deciding how to design a program to achieve the GHG emission targets in the electricity sector. After public comments, the full CPUC and the full CEC will individually consider adopting the finalized opinion at their respective meetings Oct. 16, 2008.

An "Interim Opinion," adopted in March 2008 by the two Commissions, recommended aggressive regulatory measures that maximize energy efficiency and expand renewable energy development beyond the 20 percent goal, and consideration of a multi-sector cap-and-trade program to capture additional cost-effective reductions of GHG emissions. The Interim Opinion also recommended that the "deliverers" of electricity to the California grid would be responsible for complying with the AB 32 regulations.

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New Workshops To Guide Allocations From California's Clean Transportation Funds

The California Energy Commission has scheduled two additional workshops in the ongoing development of AB 118, a funding source for clean transportation technologies, such as alternative and renewable fuels. Many recent headlines about the environment have focused on climate change and the various regulatory mechanisms that could be used to reduce greenhouse gas emissions. This is especially so in California, the first state to enact a climate change law, the Global Warming Solutions Act of 2006. Given California’s ambitious greenhouse gas reduction mandate, many companies are concerned about forthcoming regulations that will require costly actions to reduce their carbon footprints. Awareness of global warming has also spawned the vibrant new “cleantech” sector, with emerging companies developing technologies for new energy sources; transmission and storage; efficient energy management; carbon reduction in construction, manufacturing and agriculture; and waste management and recycling. 

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In the US, Vast Western Cap-and-Trade System Beginning to Take Shape

This post was written by Louis NaugleTodd 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.

Pennsylvania Climate Change Act

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.

California Releases Draft Scoping Plan for GHG Emissions Reduction

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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Federal Climate Change Legislation Blocked after Week-Long Senate Debate

This post was written by Todd O. MaidenLawrence A. DemaseJennifer SmokelinLouis A. Naugle, and John Lynn Smith

On June 6, 2008, U.S. Senate Majority Leader Harry Reid withdrew from consideration a bill that would have established a national “cap-and-trade” system, requiring industry to pay to emit carbon dioxide and the five other most abundant greenhouse gases (“GHGs”).  The Senate voted 48-36 in favor of the legislation, but Democratic proponents fell 12 votes short of the 60 votes needed to overcome a Republican filibuster.  Six senators absent from the debate, including presidential candidates John McCain and Barack Obama, sent letters indicating they would have voted for the bill, had they been present.

The bill, dubbed the Lieberman-Warner Climate Security Act of 2008, and championed by California Sen. Barbara Boxer, Chair of the Senate Environment and Public Works Committee, aimed to reduce total U.S. GHG emissions by about 66 percent of current levels by 2050.  In the coming decades, the Act – proposing the first cap-and-trade system to cover the electricity, industry, and transportation sectors – would have generated more than $5 trillion in government revenue, to be distributed to affected industries, consumers, and local governments.

Sen. Boxer remained optimistic about the chances of passing federal climate change legislation in the near future.  “It’s clear a majority of Congress wants to act,” she said, referring to the 54 senators who had demonstrated support.  She predicted that a new Congress and a new president would be more amenable to legislation mandating reductions in GHGs.

Other senators had harsher words for the bill’s opponents.  Sen. Robert Menendez (D-N.J.), a member of the Energy and Natural Resources Committee and Chairman of the Senate Foreign Relations subcommittee in charge of international environmental agreements, released a statement in which he charged that “The Republican ‘No’ Machine has reared its head again . . . prevent[ing] our nation from reducing the emissions that have caused the climate crisis and from investing in green technologies that can create jobs and spur the economy.”  Noting the bill was “not perfect,” he added that “every major movement starts with a first step, and that’s what this bill represented.”

Utilizing the same general approach as is being developed under California’s Global Warming Solutions Act of 2006, the bill would have created a national market in emission allowances and provided companies with financial incentives to reduce emissions.  The legislation would have allowed total U.S. GHG emissions to peak in 2012, and required subsequent reductions of about 2 percent per year until 2050.  Approximately 2,100 companies – mostly coal-fired power plants, oil refineries, natural gas processors, and factories – would have been required to purchase permits, or “allowances,” to emit GHGs.  Companies exceeding the target reductions would have been able sell or trade their allowances.  While many of the initial allowances would have been distributed at no charge, most would have been auctioned off.  The revenue from these auctions would have paid for cleaner technologies and rebates to poorer consumers to offset expected increases in energy prices.  The bill would have also established a Carbon Market Efficiency Board, which would have monitored progress and assisted companies in dealing with fluctuations in carbon prices.  In short, the bill was intended to incentivize GHG emission reductions while enabling the emitting parties to determine how they wish to accomplish those reductions.

Opponents, including the current Administration, viewed the bill as a tax on industry that would have increased energy prices, eliminated jobs, and made American businesses less competitive.  President Bush said the bill was “the wrong way to proceed,” and had threatened a veto if it were to pass in its current form.  He added that the bill “would impose roughly $6 trillion of new costs on the American economy.”  An Energy Information Administration study estimated that reducing greenhouse gases 45 to 55 percent by 2030 would slow economic growth by 0.2 percent to 0.6 percent of U.S. gross domestic product.  Because the electric power industry would account for more than 80 percent of the reductions, the study predicts that electricity prices could rise by 11 percent to 64 percent by 2030, and gasoline prices could rise by 22 to 49 cents over the same period.

San Francisco Bay Area Air District First in Nation to Impose Fees on GHG Emissions

This post was written by Todd O. Maiden, Lawrence A. Demase, Louis A. Naugle.

On May 22, 2008, the Bay Area Air Quality Management District (“BAAQMD”) became the first agency in the nation to impose fees on businesses that emit greenhouse gases (“GHGs”).  The new regulation, effective July 1, will require 2,500 businesses in nine Northern California counties to pay 4.4 cents for every metric ton of emitted carbon dioxide.  While the fees may amount to less than $1 per year for more than 1,500 small businesses, some companies that operate oil refineries, power plants and manufacturing facilities may pay between $50,000-$200,000.  The regulation will apply to any business holding a current BAAQMD permit that restricts emissions resulting in smog.  The new measure is anticipated to generate approximately $1.1 million in fees, which BAAQMD will use to track GHG emissions.

BAAQMD – California’s first regional agency dealing with air pollution – was created by the California Legislature in 1955.  The regional agency oversees air quality issues in all seven Bay Area counties – Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara and Napa – and in portions of Solano and Sonoma Counties.

The new measure is intended to reduce emissions and impose an assessment to cover the ultimate costs of global warming upfront. However, the fees may be too modest to impact individual behavior.  Nevertheless, proponents hope the measure will set a precedent and provide a model framework for state and local agencies.

Critics argue the agency lacks the authority to impose these fees because the state has sole jurisdiction to monitor and regulate GHG emissions.  California has passed AB 32, the Global Warning Solutions Act of 2006, which requires that greenhouse emissions be reduced to 1990 levels by 2020, and further reduced to a level 80 percent below 1990 levels by 2050.  Critics also assert that the BAAQMD measure will interfere with state’s efforts because it will create uncertainty as to the controlling regulation, will undermine existing state programs, and may engender duplicative fees.

The measure may yet be subject to legal challenge. It could, for example, be subject to state or federal preemption, especially if other programs are adopted that either tax emissions or establish a cap-and-trade program.  On the other hand, a spokesman for the California Air Resources Board has reportedly suggested that requirements for future statewide programs could be superimposed over the local fee program, leaving it intact.  Although uncertainty exists about the future of the measure, the agency seized the initiative in a way that is likely to get the attention of state and federal agencies.

Greenhouse-Gas Cap and Trade in the US

This post was written by Jennifer Smokelin.

Will national GHG cap and trade hit this country? If so, when? Will the cap and trade system affect your client? And can your clients take advantage of trading in GHG cap and trade before then (IETA estimates predict an overall growth to 70 billion Euro next year in the global market for carbon, of which EU-ETS is 75 percent)?  The Lieberman-Warner Climate Security Act of 2007 (S.2191), which would establish a national cap-and-trade system to reduce U.S. greenhouse-gas emissions, is much less stringent than some other climate bills in Congress, but Lieberman-Warner is so far the only one to pass out of committee; it's scheduled for a Senate vote in June. It would become effective in 2012 and affect 80 percent of the GHG emitting sectors in the United States. Further, U.S.-based entities can benefit today from the carbon markets created by the Kyoto Protocol and the European Trading System (ETS), even though the United States has not ratified Kyoto. They can do so by investing in Clean Development Mechanism (CDM) projects in "non-Annex I" countries like Mexico, and then trading the resulting Certified Emissions Reductions (CERs) into the ETS at a current estimated value of $27 per ton CO2 equivalent. In addition, under Lieberman-Warner as passed out of committee, foreign-generated credits might be used to meet required allowances in the early years of the U.S. cap-and-trade program.

Plan to Regulate Airline Emissions Moves Forward in the E.U.

This post was written by Jennifer Smokelin.

The first reading report of the European Parliament (issued last November) to include airlines in the E.U.’s carbon trading scheme was approved by the members of the European Council, although in a scaled-back version. The Council’s proposal aims to start in 2012 (instead of 2011) and suggests emission levels should be capped at 100 percent of the average levels for the years 2004-2006 (thought by some to be 90 percent above 1990 levels). The degree to which permits will be issued free rather than auctioned remains to be determined. The plan still needs final approval of the European Parliament on second reading which will likely take most of 2008.

One Step Closer to National Greenhouse Gas Regulations

This post was written by Jennifer Smokelin.

Congress has directed the Environmental Protection Agency (EPA) to establish national mandatory reporting of greenhouse gas (GHG) emissions.  Congress inserted the requirement into the omnibus budget bill, HR 2764 (Public Law No. 110-161), which was signed into law last month.

Most observers assumed that a national GHG reporting program would be part of more comprehensive federal emissions trading legislation (e.g., the Lieberman-Warner Act).   Instead, the reporting mandate has been enacted before comprehensive climate legislation: Buried in the $500 billion omnibus budget package signed into law by President Bush last month is a provision that requires EPA to establish a mandatory program that will require U.S. companies by mid-2009 to report their GHG emissions. This leaves the EPA in the difficult position of having to develop a reporting program without knowing the details of the regulatory program it will ultimately be supporting, not to mention developing a program to work in harmony with the reporting requirements of other states, including California’s mandatory reporting regulation that became effective Dec. 6, 2007 (but it doesn't require the submission of reports, which would cover 2008 emissions, until 2009)!