Transcript Developments in U.S. Environmental Law 2015-2016

Environmental
Regulation:
Update 2015
Peter McGrath
Moore & Van Allen, PLLC
Climate Change in Washington and Paris
Climate Change
▪ Clean Power Plan
▪ Paris Accords
▪ Add your third bullet point here
Clean Power Plan
Massachusetts v. EPA (2007): Supreme Court holds that
the Clean Air Act requires the EPA to regulate greenhouse
gas emissions
Observers expected Congress to act to direct how EPA
should act,-- either a Cap and Trade System or a Carbon
Fee, to prevent EPA mandatory regulation
Cap and Trade System Passed the House in 2009, no
action in Senate
Climate Change Plan (continued)
▪ EPA Promulgated Plan in October 2015
▪ Follows Clean Air Act (and general federal environmental
statutory) paradigm
Operation of Plan
▪ Baseline for each state based on 2005 emissions
▪ Overall nationwide goal: By 2030, 32% reduction of CO2
emissions from baseline level
▪ Plan regulates fossil fuel fired electricity generating units
(“EGUs”)
▪ Each State to develop “best system of emission reductions” (
“BSER”)
BSERs Phase In
▪ Improved efficiency at coal-fired EGUs
▪ Shift from coal-fired EGUs to natural gas units
▪ Shift from fossil fuel to zero-emitting renewables
More Baselines
▪ 2012 Baseline for Each State
– Unfair to NC.– Clean Smokestacks Act in 1999
▪ Regional Baseline Emissions Rate (unit of greenhouse gas
emitted per unit of energy produced)
▪ Emissions Goal and Emissions Rate Goal for Each State
Federalism
▪ Each state to submit its plan for EPA approval
– EPA promulgated model plan
▪ If approved, EPA delegates authority to the state to administer
the Clean Power Plan in the state (in the form of the state
approved plan)
▪ EPA also developed a “federal implementation plan) which the
EPA is to administer in states without approved plans
Schedule
▪ By September 6, 2016: Submission of Plan, or Draft Plan Plus
Extension Request
▪ If Extension Request is Granted, Final Plan due September 6.
2018
▪ Implementation Milestones in 2022, 2025, and 2028 (or 2024,
2027 and 2029 if extended)
Litigation
▪ 29 States joined in litigation against the EPA
▪ DC Circuit Court of Appeal
▪ States immediately sought a stay of the effectiveness of the
plan
▪ Stay denied by DC Circuit
▪ Appealed to US Supreme Court
▪ Supreme Court Granted Stay (Unprecedented Step?)
Paris Accords
Paris Accords
▪ December 12, 2015, 195 nations became parties to the Paris
Agreement
▪ Expands the 1992 United Nations Framework Convention on
Climate Change and the 1997 Kyoto Protocol
▪ Iran, China, Russia, and India are parties
Kyoto Protocols
▪ Two “commitment periods”
▪ 2008 to 2012: greenhouse gas emissions reduction targets for
certain participants in the Protocol
▪ 2013- 2020: The Doha Amendment. 37 nations committed to
establishing additional binding greenhouse gas emission
target limits. (Seven of the 37 have so far actually adopted
such limits.)
▪ Paris Agreement is intended to provide a framework for
addressing climate change issues after the expiration of the
second commitment period
Goals of Agreement
▪ “Aim” to reach global peaking of greenhouse gas emissions as
soon as possible
▪ Long term temperature goals:
– Holding the increase of global average temperature to well below 2
degrees Celsius above pre-industrial levels
– Pursue efforts to limit the temperate increase to 1.5 degrees Celsius
above pre-industrial levels
Terms of Agreement
▪ Each party to prepare, communicate, and maintain successive
nationally determined contributions to the emissions
reduction goal that it intends to achieve
▪ No objective standards by which the world or other parties
may judge the contributions proposed by each party
Dividing the World Into Two Parts
▪ Developed country parties and developing country parties
▪ Not defined in the Agreement
▪ 1992 United Nations Framework Convention on Climate
Change divided the world into two parts, countries that had
“historical responsibility” for increased atmospheric carbon
levels and those that did not.
▪ Counties with historical responsibility were listed in Annex 1 of
the framework. (Annex I countries are the countries to whom
the “first commitment period” target reduction limits applied)
Financial Commitments
▪ The only actual commitments?
▪ Developed country parties “shall” provide financial resources
to assist developing country parties with respect to both
mitigation and adaptation in continuation of their existing
obligations under the convention
▪ Developed country parties “shall” every other year
communicate quantitative and qualitative information
including projected levels of public financial resources to be
provided to developing country parties
Wetlands Rules
Wetlands Background
▪ Federal Jurisdiction over “waters of the United States,”
including wetlands
▪ Solid Waste Agency of Northern Cook County v. USACE
(migratory birds don’t confer federal jurisdiction)
▪ Rapanos v. US (federal jurisdiction only where there is
relatively permanent flow, and a continuous surface water
connection between the wetlands and a relatively permanent
waterbody,
Status
▪ Sixth Circuit to Hear Consolidated Challenges to the Rule
▪ Supreme Court to Rule on Whether a “Jurisdictional
Determination” Itself Can be Challenged
National Ambient Air Quality Standards
▪ Changes to Ozone Standard to 70 from 75 ppm
Reset of Hazardous Waste Generator Rules
▪ Allowing a hazardous waste generator to avoid increased
burden of a higher generator status when generating episodic
waste provided the episodic waste is properly managed and
▪ Allowing a conditionally exempt small quantity generator
(CESQG) to send its hazardous waste to a large quantity
generator under control of the same person.
Superfund Update
▪ Limits on Joint and Several Liability
▪ Intent to Dispose