Transcript The Energy Act Policy of 2005: A Comprehensive Overview

GHG REGULATION &
LITIGATION
Update
Peter Glaser
Southeast Air Quality Conference
Atlanta, GA
October 4, 2007
Regulatory/Litigation Issues
•
•
•
•
•
•
EPA
State GHG Regulatory Efforts
Tort Lawsuits
Financial Disclosure Issues
Motor Vehicle GHG Issue
Other Issues
Are GHGs a CAA Pollutant?
• Supreme Court: 5-4 Yes
• Statute: broad definition of “air pollutant” and “air
pollution”
• Ruling does not mandate regulation
• Remand: Endangerment
• Discretion
- No non-endangerment policy factors allowed
- Scrutiny on endangerment finding
Potential Ramifications
• Case not just about motor vehicle emissions
• Large Stationary Sources
– Remand of New York v. EPA - NSPS
– PSD/NSR – are GHGs currently “subject to
CAA regulation?
– NAAQS?
• Congress?
STATE LEGISLATION
• CA and MN legislation regulates out-of-state
emissions
• RGGI
• Western Climate Initiative
TORT LIABILITY? NOT YET
• NY: 8 States sue 5 utilities over GHG emissions
from powerplants in 20 states – seeks injunction case dismissed – appellate decision expected
shortly
• MS: Individual property owners sue large number
of energy/chemical companies alleging GHGs
exacerbated Katrina – sought damages – case
dismissed 8/30/07 – on appeal
• CA – AG sues autos – seeks damages – case
dismissed 9/17/07
BASIS FOR DECISION: POLITICAL
QUESTION
“While at times, some judges have become involved
with the most critical issues affecting America,
political questions are not the proper domain of
judges.”
GHG FINANCIAL DISCLOSURE
• 9/14/07 NY AG Cuomo issues subpoenas
against 5 energy companies seeking
information on companies’ potential
financial liabilities from GHG emissions and
whether they have been adequately
disclosed
• Implies failure to adequately disclose could
be violation of NY law as misrepresentation
or fraud
SEC PETITION
• 9/18/07 – Large institutional investors, state AGs, 11 state
pension funds, environmental groups
• Seeks: “Interpretive guidance clarifying registrants’
obligation under existing regulations to disclose material
information concerning the effect of climate change and
regulation of greenhouse gas emissions upon their
financial condition and business operations.”
• Also seeks immediate review of adequacy of climate
change risk disclosures for companies filing 10-Ks and 10Qs.
Can States Regulate Motor Vehicle
Tailpipe GHGs?
• Clean Air Act gives CA authority to set more
stringent tailpipe emissions standards, allows
other states to adopt CA standards – EPA waiver
required
• CARB establishes GHG emissions standards –
about a dozen states follow suit, including VT
• EPA Waiver
• Lawsuits: preemption by CAFE
• VT Court: upholds state
OTHER
• Extent to which global warming should be
considered in EIS (DM&E Railroad, Border
Transmission Line, OPIC / Export-Import Bank
financing)
• Rural Utilities Service
• Polar Bear Endangered Species
• Federal Endangered Species Petition
Peter Glaser
Troutman Sanders
401 9th Street, N.W., #1000
Washington, D.C. 20004
202-274-2998
[email protected]