E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

As I noted here, EPA's leadership has targeted the nanotechnology industry for regulation.  The Agency's December Action Initiation List reflects this, stating EPA is developing a significant new use rule under TSCA section 5(a)(2) "for nanoscale materials."  The rule will require "persons who intend to manufacture, import, or process" nanomaterials to "notify EPA at least 90 days before commencing that activity" so EPA may "prohibit or limit that activity before it occurs" to prevent "unreasonable risk to human health or the environment." 

EPA's intentions, particularly given the massive methodological and data quality problems of nanomaterial risk assessment, need to be better understood.  Inter-agency coordination between EPA and the rest of the Federal Government on nanotechnology regulation should be a priority, yet it seems EPA is moving forward without substantive consultation.  As a first step, the industry should request more transparency from the Agency, especially with respect to the data it relies on to support this regulatory initiative.     

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This is not the best of news for carbon traders.  The Guardian (UK) reports "Banks and investors are pulling out of the carbon market after the failure to make progress at Copenhagen on reaching new emissions targets after 2012....Banks had been scaling back their plans to invest in carbon markets before Copenhagen. Fewer new clean energy projects need to be financed as, because of the recession, there are fewer global emissions to offset. The price of carbon credits has also fallen, while plans to introduce national trading schemes, particularly in the US and Australia, remain uncertain."  

The Guardian notes it is not yet clear if it is "a cull or a rout" of the carbon markets.  Even so, given the state of play in China, India, and the U.S.,  it now seems prudent to begin reconsidering and possibly reformulating business plans that assume robust CO2 controls, trading, and markets anytime soon.     

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The informative Texas Energy and Environmental Blog reports "At a briefing this morning with reporters from The Dallas Morning Newsand other outlets, White House senior advisor David Axelrod didn't list climate change as a top priority for 2010. (The list basically consisted of finding ways to create jobs and passing a major financial regulation bill.)" and asks "is climate change is still a priority for Team Obama?"

Well, it is, but not through legislation.  Instead, the Administration is acting by expanding Federal agency power and control.  For example, at the January 20 meeting of the US Conference of Mayors, EPA Administrator Lisa Jackson again made it clear EPA intends to control local land use for "sustainability," as we discussed here.  

What's happening in Congress is and probably always has been little more than a distraction to the Administration.  The real action is in the Federal bureaucracy, but almost no one is paying attention.   Team Obama wants "transformative change" to the economy, and has opted for agency rules over legislation to avoid the "distractions" of the legislative process - i.e., popular opposition (the Landrieu (D-La.)/Murkowski (R-Alaska) bipartisan effort to block EPA from regulating greenhouse gases under the Clean Air Act, health care, etc.)  Republican Scott Brown's stunning election will encourage Team Obama to accelerate its efforts on the agency front. They know rules and guidance once issued almost never die. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

They're playing hockey in Hades.  Massachusetts has elected a Republican Senator.

The conventional wisdom seems to be Scott Brown's election means cap and trade is all but dead.  Maybe so.  But, Scott Brown and the Republicans are not the reason cap and trade is in extremis.  Cap and trade proponents must admit data quality, or more accurately the lack thereof, is the root of the problem. 

In a Politico blog posting (Politico is a first rate source for DC news) Walter Russell Mead, a respected fellow at the Council on Foreign Relations, makes the point well:

While everyone's attention was fixed on Massachusetts, the climate change agenda was busily unraveling....The problem is that the IPCC's prediction that the Himalayan glaciers would melt by 2035 turns out to have no factual or scientific basis at all. Zip. The IPCC is withdrawing the prediction...after ignoring attempts by specialists to delete the ridiculous prediction and then vilifying public critics as anti-scientific numbskulls.

Mead's point, which should be well taken, is poor data quality will "heighten skepticism about IPCC recommendations -- and about both the will and the capacity of the climate change establishment to translate raw scientific data into serious policy".  As a result, he predicts "2010 will not be the year that either the US or the world in general come to terms on a serious climate agenda."  Absent a credible data fix, the US may not "come to terms on a serious climate agenda" for 2010 and beyond.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

He said:

"From every mountainside, let freedom ring.  For when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual: Free at last! Free at last! Thank God Almighty, we're free at last!" 

The dream has not died.  Text and video here.  Nearly forty-seven years later, still well worth watching.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Who is the key White House official telling Congressional and industry energy bill negotiators that the Obama Administration is unwilling to die on the cap and trade hilltop?

At the same time, what about the big-time green group legal director who let it slip at a recent "private" dinner that there is a coordinated and "totally funded" litigation effort in the offing, purportedly by "fringe" environmental organizations, to gut the EPA's tailoring rule and extend CO2 permit requirements as far as possible, even to the neighborhood pizza shop?  And that key players in EPA and the West Wing are covertly supporting and aiding this effort?

Stay tuned.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Do "environmental groups" aim to kill green energy?  A distressing pattern of litigious conduct suggests at least some "greens" oppose any energy project supporting the supposedly "unsustainable" Western lifestyle.   So, they sue.

Thanks to Robert Lamkin for the following post.

Judge Roger W. Titus of the U.S. District Court of Maryland has “reluctantly” enjoined construction of a West Virginia wind farm under the Endangered Species Act (ESA) to protect the Indiana bat. In Animal Welfare Institute v. Beech Ridge Energy LLC, Judge Titus ordered construction cease and operations suspended except when the bat hibernates. 

It is not clear whether this decision - the first from a federal court holding a wind power project violates ESA - means the Indiana bat is the green energy northern spotted owl, but it very well might.  The Judge assumed the developers could have obtained the FWS permit, but, as anyone with FWS experience can tell you, this is quite an assumption. The Indiana bat's habitat spans approximately twenty states in the mid-western and eastern U.S.   Thus, the Beech Ridge decision means wind power projects in a huge part of the US now may need to factor FWS permits into development financing and cost estimates, creating yet another barrier to green energy deployment.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The key lesson of the recent summary judgment in Appleton Papers Inc. v. George A. Whiting Paper Co., No. 2:08-cv-16-WCG (E.D. Wis. Dec. 16, 2009), the $1 billion Fox River CERCLA contribution litigation, is that it takes really good lawyers to make "guilty" mean "guilty" under CERCLA.

Appleton involved a CERCLA contribution claim by carbonless copy paper makers against paper recyclers for a PCB cleanup of the Fox River in Wisconsin. The manufacturers knew recycling the production scrap and the carbonless copy paper carried risks, but sold it to the recyclers regardless knowing PCBs would end up in the river.  The court decided, on the recyclers’ motion for summary judgment, that the manufacturers were therefore too guilty for contribution.  The transcript of the hearing is very interesting reading.

The Appleton result, as anyone who has ever litigated a CERCLA contribution case can tell you, is tremendous and rare and a credit to David Mandelbaum and his team because allocation cases typically turn on volume and toxicity and not culpability.  Equally unusual is the relative speed with which Mandelbaum obtained the judgment. The recyclers were not all named until November 2008 but the culpability issue was ready for trial just 14 months later.

David and the other GT lawyers on the case will discuss the decision's practical implications and explore whether creative case management can make mega-cases tractable (for CLE credit, no less) in our Philadelphia office on February 4 from 8:00 to 10:15 a.m.  Contact Thelma Cranmer at 215-988-7800 or cranmert@gtlaw.com (put "Feb.4 CERCLA" in the subject line) for more information.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is an old saying that watching how sausage is made, or legislation is enacted, will turn even the strongest of stomachs. 

For a sense of what's happening with climate change bill lobbying, check out Chris Horner's post at National Review Online titled "Little Green Men and Their ‘Indispensible’ Big Green Lobbyists" here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

North Dakota's member of the House of Representatives, Democrat Earl Pomeroy, has introduced H.R. 4396, the "Save Our Energy Jobs Act", to prohibit EPA from regulating CO2.  

The Bill proposes to amend Section 302(g) of the Clean Air Act (42 U.S.C. 7602(g)) to read "The term `air pollutant' shall not include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride."   It also contains a "sense of Congress" provision providing (1) Congress did not intend to regulate greenhouse gases under the Clean Air Act.  (2) EPA should not regulate greenhouse gas emissions without explicit authority to do so. (3) GHG rules will significantly affect nearly all aspects of the US economy and should not be left to administrative rulemaking absent congressional action.  (4) Comprehensive GHG regulations must only be enacted--(A) at the direction of Congress; and (B) if Congress specifically intends such regulations to be implemented.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Codexis, Inc., a San Francisco-based company developing biocatalysts to better enable the commercial use of cellulosic feedstock biofuels, among other things, has launched a $100m IPO.   

The S-1 warns potential investors the company's performance may be dependent on "the existence of government subsidies or regulations with respect to carbon dioxide emissions."  Codexis is far from unique in this respect - many alternative energy companies depend, to varying degrees, on government regulation to "make the market."  However, to date the government has generally failed to deliver and the alternative energy industry has suffered accordingly.  The Wall Street Journal notes:

An alternative energy, U.S.-listed IPO is something of a novelty. The last biofuels IPO was way back in December 2007, when Chinese biodiesel maker Gushan Environmental Energy Ltd. debuted. After that there have only been three IPOs – solar outfits Real Goods Solar, GT Solar and STR Holdings. (Hat tip to Dealogic for the data.) Battery maker A123 began trading a couple months ago also.

In retrospect, the alternative energy industry may have over-commited on "climate change" as a policy driver.  Now, with cap and trade bogged down in Congress, the industry's short and mid-term prospects are muddy, complicating private investment.  As discussed here, the industry should consider relying far more on energy security, and far less on global warming, to make its case in Congress.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Wishing you the best of everything in 2010!

• Email This
• Print
• Comments
• Trackbacks
• Share Link