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

OMB has released its draft 2010 "Report To Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities". The Report examines the benefits and costs of major Federal regulations issued in FY2009 and summarizes the benefits and costs of major regulations issued during the previous ten years.  It also discusses regulatory impacts on State, local, and Tribal governments, small business, wages, and economic growth; offers recommendations for regulatory reform; updates how the Administration is implementing the Information Quality Act; and summarizes agency compliance with the Unfunded Mandates Reform Act. 

Interestingly, OMB is asking for comment on regulations that are ripe for change or repeal.  Persons adversely affected by federal regulations ought to grab this opportunity to put their concerns on the record.  Comments on the draft Report should be submitted at www.regulations.gov, Docket ID OMB-2010-0008.

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

From Heather Behnke, GT Albany.

On April 23, New York State Department of Environmental Conservation (DEC) Commissioner Alexander "Pete" Grannis announced that any applications for natural gas drilling permits using high-volume hydraulic fracturing (fracking) techniques that are located in the New York City or Skaneateles Lake watersheds (which includes Syracuse) will be assessed on a "case-by-case" basis instead of under the Supplemental Generic Environmental Impact Statement (SGEIS).  As we discussed here, the SGEIS is in the process of being finalized by the DEC and is not expected to be completed until later this summer or this fall. The DEC claims the additional environmental review is warranted because these watersheds use an unfiltered surface water supply and drilling in these watersheds poses unique land disturbance and usage issues that will not be addressed by the SGEIS.

The president of the environmental group Riverkeeper, which has long sought to ban fracking within the NYC watershed, said this restriction amounts to a "de facto ban" on fracking. None of the 58 pending permit applications will be affected by this new restriction because they are not located in these watersheds.

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

From Heather Behnke, GT Albany

New York Department of Environmental Conservation  Commissioner, Alexander "Pete" Grannis, told a conference in Albany on April 15 that DEC would take until late summer or early fall to complete its review of nearly 14,000 comments on the Marcellus Shale study  DEC has determined to conduct before lifting a drilling moratorium.  According to a DEC staffer who also spoke at the conference, no action will be taken on the 58 pending permit applications or any new permit applications until the DEC completes its review and issues a Final Supplemental Generic Environmental Impact Study. Then, those permit applications would have to be amended to meet the requirements of the SGEIS.  Meanwhile, drilling and investment are going forward in Pennsylvania, so the money is all going there--instead of New York.

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

From Lisa Halko, GT Sacramento.

On April 14, 2010, the California Supreme Court denied a petition to review the Fourth Appellate District’s decision in American Meat Institute v Leeman holding the Federal Meat Inspection Act (FMIA) preempts California’s Proposition 65.  This decision will provide much needed regulatory certainty, and possibly curtail Proposition 65 abuses.

The AMI case arose because a well-known Prop 65 plaintiff, Whitney Leeman, had given notice of her intent to sue meat packagers for failure to warn consumers that meat supposedly contains harmful amounts of carcinogens and/or reproductive toxins.   Leeman claimed that packaged meat contains dioxins and PCB’s, which are listed Proposition 65 substances, and should bear labels stating: “WARNING: This product contains chemicals known to the State of California to cause cancer” or “WARNING: This product contains chemicals known to the State of California to cause birth defects or other reproductive harm.”  

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

Sen. Frank Lautenberg (D.N.J) has introduced a bill to comprehensively reform the Toxic Substance Control Act of 1976 (TSCA).  Lautenberg's Bill is titled the Safe Chemicals Act of 2010.  The Bill is 169 pages long and demands careful analysis.  However, on a first reading it appears radical and impractical changes are being proposed.  For example: 

• The Bill discards TSCA's risk-based approach for the European "precautionary principle."   The Bill states all chemicals "[must] meet a risk-based safety standard that protects vulnerable and affected populations and the environment" and that companies "at all times, bear the burden of proving of proving" compliance with the "applicable safety standard."  
• The "safety standard" is "reasonable certainty of no harm," which in turn is defined as "a negligible risk of any adverse effect on the general population or a vulnerable population."  The term "negligible risk" is not defined.  "All" chemical substances in commerce must  meet this standard.  
• On the one hand, the Bill requires every safety standard compliance determination to be "supported by an assessment of risk conducted by an [EPA] employee or contractor..."  On the other hand, no risk assessment is required to deny compliance certification.  
• The Bill grants EPA  total and unfettered discretion.  It explicitly (and likely illegally) exempts EPA's determination that a company has failed to prove "safety" from judicial review.  EPA is judge, jury, and executioner.
• The Bill does not preempt more restrictive State requirements.
• The Bill expands EPA control over nanomaterials by doing away with the "molecular identity" test.
• The Bill does away with business confidentiality,  requiring all TSCA-related studies must be made public as part of a "registry of all health- and safety-related studies" and mandating disclosure to EPA "and the public...the sources of any funding used for the conduct or publication of the study received by the researchers who conducted the study."  

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

Federal, state and local environmental regulators are increasing their efforts to regulate stormwater discharges from commercial properties, and are going beyond traditional regulatory approaches to do so.  For example, EPA recently announced a pilot permitting program for discharges to the Charles River in eastern Massachusetts that will require commercial property owners to reduce phosphorous levels in their stormwater discharges by 65 percent.  

EPA's initiative is a caution for commercial property owners nationwide. Check out the attached GT Alert by Hamilton Hackney of GT Boston for a complete analysis.

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

Robert Verchick is EPA's Deputy Associate Administrator for Policy, Economics, and Innovation (OPEI). Previously, he was a law professor and a board member of something called the “Center for Progressive Reform,” a far left “think-tank” favoring federal government control over pretty much every aspect of human existence.

EPA issues scores of rules every year for implementation by State environmental agencies.   State regulators, who have found EPA’s implementation cost estimates almost always substantially underestimate costs, and who must obtain State budgetary appropriations to pay for EPA mandates, therefore have asked EPA to come up with a “cost of rules formula” the State agencies may use to help develop accurate budgets. Verchick’s response:

Pound sand. 

According to the invaluable Inside EPA, Verchick addressed a March 25 Environmental Council of the States conference and reportedly said:  “I’m not sure, personally, that this cost of rules focus is serving your interest…” Furthermore, Verchick reportedly said it was not possible to isolate the cost of EPA’s rules in any event.   One can only hope Verchick's statements were somehow taken out of context, for Federal bureaucratic arrogance is generally not a terribly adaptive strategy for implementing policy.  In any event, given Verchick's well-documented antipathy to cost-estimating regulatory burdens, it is likely State environmental agencies and State taxpayers will continue to suffer from EPA’s irrational refusal to disclose its rules' true costs.  

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

From David Mandelbaum, GT Philadelphia, and K.B. Battaglini, GT Houston.

Special interest groups have long relied on the National Environmental Policy Act of 1969 (NEPA) to delay or halt domestic oil and gas development.  Now, reversing decades of policy and practice, the federal government (e.g. the Department of Agriculture's Forest Service and the Department of Interior's Bureau of Land Management) seems to be playing along with the environmentalists' strategy.  The government apparently has determined to apply NEPA not only to the availability of federal lands for oil and gas development, but also to the grant of specific oil and gas leases and perhaps even for mere access to drill individual wells.  This new policy needlessly pits the government against mineral rights holders. Oddly, at a time when the country clearly needs different energy infrastructure and resources, the government is using NEPA to avoid engagement on the substantive questions and as a vehicle for delay. 

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

From David Mandelbaum, GT Philadelphia.

On April 6, the Federal Highway Administration disapproved Pennsylvania's proposal to impose tolls on Interstate 80, one of two main east-west highways through the Commonwealth.  The funds were to be used to provide secure funding for a broad range of transportation needs in Pennsylvania, including, importantly, capital improvements to the major metropolitan public transportation systems.  FHWA reasoned that federal law restricted the use of toll revenues to improvements of I-80, and would not permit use of the funds to rebuild other roads and bridges or to fund mass transit.

If you believe that the cost of transportation fuels will increase because of climate policy, international politics, or availability of petroleum, then you believe that those regions that can do business with less fuel will do better. Cities with better transit will, all other things equal, be where businesses and people want to be. In the process, the nation as a whole will become more efficient as activity flows to those places. As a practical matter, capital improvements to urban transit systems are just not going to be funded by the bus fairy. Pennsylvania tried one interesting approach to having one transportation mode help fund the sort of capital improvements that climate-friendliness and energy-efficiency would require. We see here an example of the sclerotic complexity that rebuilding the economy for an energy- or carbon-constrained world encounters.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

From Gene Livingston, GT Sacramento.

In the 19th Century, California was known for Gold. In the 21st, it aims to be known for Green. The State's "Green Chemistry Initiative", described here, is a massive undertaking, at least as significant and wide-ranging as California's efforts to reduce GHGs.  

The California Legislature has granted unprecedented authority to the State Department of Toxic Substance Control, authorizing the agency to identify and prioritize chemicals in consumer products as "chemicals of concern" and to require manufacturers to assess alternatives to limit exposure or reduce hazard levels.  DTSC's powers include product bans. 

For more than a year, DTSC has worked on regulations. At one point, it circulated a draft that would have covered hundreds of thousands of consumer products and required all products containing any identified chemical to be banned in two to twenty years.  While DTSC has abandoned that draft, its public disclosures leave unanswered most questions about the scope of implementation.  DTSC expects to release a detailed outline by mid-April that is certain to raise enormous concerns for businesses and consumers.

Updates will follow as events unfold.

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

From Greg Casas, GT Houston.

As the Senate turns to an energy/cap and trade/tax bill to reduce GHG emissions, the pundits are turning to the question of whether cap and trade (a) will be enacted and/or (b) reduce GHGs. The Huffington Post’s Robert Stavins links the demise of cap and trade to the failing economy, to an endemic lack of faith in markets, and to the fact that cap and trade was the leading proposal to limit and reduce greenhouse gas emissions. In other words, cap and trade has been attacked by Republicans and coal-state Democrats because it was supported by the everyone else. 

The problem with this is that not “everyone else” supports cap and trade. For example, Annie Leonard launches a hyperbolic attack on cap and trade (e.g. cap and "giveaway" was designed by Enron alumni and Goldman Sachs, and is akin to the pyramid scheme of Bernie Madoff), and misinformation about how markets actually work .    According to Leonard, cap and trade is bad, can never work and will be abused by big business to make money and continue to pollute. 

Leonard is not entirely wrong. Improper cap and trade programs accomplish nothing. However, Leonard substitutes invective for analysis. Her solution is to slap carbon fees on “polluters” – neglecting to mention that these “fees” will be paid by consumers – and then sending the money overseas to pay our "ecological debt." Her approach calls for severe regulation, which even she admits will be "painful," to reduce emissions.

A recent MIT report, offhandedly and wrongly cited by Leonard, demonstrates the fallacy of her approach by concluding proper cap and trade systems can reduce GHGs without significant economic impact.  MIT assumes free allocations of allowances might be necessary at the outset, but that allowances will be auctioned as the system matures. Further, allowances must be created based upon realistic expectations for manufacturing and energy production. Overestimating the need will result in no incentive to reduce emissions, or worse, the misuse of unused allowances, as in Hungary. Underestimating need, on the other hand, will result in skyrocketing prices and in fact tank the economy as critics warn. 

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

The NNI's Third Report is out.  The environmental, health, and safety section calls for interagency coordination and identification of "plausible risks."    This is good policy and good science.  So why isn't EPA listening?  

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