United Nations to Host Climate Change Summit

(Adaptation, International, Renewable Fuel Standards and Biofuels) Permanent link
On September 23, 2014, the United Nations (UN) will host a one-day climate change summit (Climate Summit 2014) in New York City. UN Secretary-General Ban Ki-moon has invited civic, government, finance, and business leaders to the event in hopes of “galvaniz[ing] and catalyz[ing] climate action.”

The Secretary-General has asked for these leaders to announce their plans to reduce emissions, strengthen climate resilience, and mobilize political will in advance of an international legal agreement that he hopes to acheive in 2015.

Climate Summit 2014 will consist of a morning session, where UN member states will have an opportunity to make these climate-related announcements. The UN expects more than 120 Heads of State and Government to attend. U.S. President Barack Obama and British Prime Minister David Cameron have both announced that they plan be at the summit. The leaders of several other major players in any international climate initiative, however, are reportedly going to miss the event. This group includes China’s President Xi Jinping, India’s Prime Minister Narendra Modi, and Germany’s Chancellor Angela Merkel.

The morning announcements will be followed by an afternoon session, which will consist of a series of topic-specific climate discussions. The afternoon session will focus on eight “actions areas” for dealing with climate change: agriculture, cities, energy, financing, forests, petroleum and industry, resilience, and transportation. With regard to energy, the UN and World Bank have already begun a joint initiative called Sustainable Energy for All. This initiative has “set 2030 as a goal for doubling the global rate of energy efficiency improvement, doubling renewable energy’s share in the global energy mix, and ensuring universal access to modern energy services.”

As part of the climate financing meeting, participants will discuss how to pay for any plans for climate mitigation and adaptation. The Secretary-General also wants UN members to announce their initial contributions to the Green Climate Fund. The Green Climate Fund will be used to promote low carbon and climate-resilient sustainable development and aims to deliver $100 billion a year by 2020, mainly from developed to less developed nations.

Posted by Corinne Snow at 9/18/2014 2:55 PM

EPA Extends Comment Period for Clean Power Plan Proposal

(Federal GHG regulations) Permanent link

On September 16, 2014 EPA granted a 45-day extension to the period for public comment on the proposed greenhouse gas (GHG) rule for existing power plants source performance standards (Clean Power Plan Proposal). The new deadline for comments is December 1, 2014.

This announcement comes in the wake of a letter sent on September 11, 2014 by a group of fifty-three senators (the “September 11 Letter”) to EPA Administrator Gina McCarthy asking her to give the public additional time to comment.

The ordinary comment period for a proposed rule is thirty to sixty days. EPA provided a longer 120-day comment period for the Clean Power Plan Proposal based on a previous request from a group of forty-seven senators. The original group of senators requested that extended period for comment because of the “significant impact this rule could have on our nation’s electricity providers and consumers, on jobs in communities that have existing coal-based power plants, and on the economy as a whole.”

Now a slightly larger group of senators has requested an additional sixty-day extension to the comment period. The group includes ten Democrats and nearly all senate Republicans. Senators Deb Fischer (R-Nebraska) and Heidi Heitkamp (D-North Dakota) took the lead in making both the initial 120-day request, as well as this second request for a time extension.

In the September 11 Letter, the senators argue that an additional 60-day extension is “critical to ensure that state regulatory agencies and other stakeholders have adequate time to fully analyze and comment on the proposal” and to allow these stakeholders time to “digest more than 600 supporting documents released by EPA in support of this proposal.” The letter notes that the proposed rule imposes a heavy burden on states during the rulemaking process because the states must provide supporting documentation in order to contest the emission rate targets included in the Clean Power Plan Proposal. As the letter explains, the proposed rule does not provide a mechanism for states to later challenge the interim and final emissions targets set by EPA for each individual state.

The September 11 Letter also explains that EPA’s proposed rule requires an unprecedented level of coordination to fully evaluate “intra- and inter-state, regional, and in some cases international energy generation and transmission.” The letter concludes that, as a result of these complexities, comments on the Clean Power Plan Proposal “cannot be adequately accomplished in only 120 days.”

President Obama has asked EPA to issue a final rule by June 2015. For more information about the Clean Power Plan Proposal, please see this previous blog post.

Posted by Corinne Snow at 9/16/2014 4:59 PM

State Perspectives on the EPA’s Clean Power Plan Proposal

(Federal GHG regulations) Permanent link
This week states have continued to actively discuss EPA’s greenhouse gas (GHG) rule for proposed existing power plants source performance standards (Clean Power Proposal). On September 9, several states testified before House Energy & Commerce Committee’s energy and power subcommittee, and California Air Resources Board (CARB) officials held a workshop to discuss EPA’s proposal.


As discussed in a previous post, EPA published a proposal earlier this summer in the Federal Register to create GHG emission standards for existing power plants earlier this summer. EPA invoked a rarely-used provision in the Clean Air Act, section 111(d), as the statutory authority under which it proposes to require states to meet mandatory carbon dioxide (CO2) targets. EPA is proposing to set individual state GHG reduction targets. The proposed rule includes an individual “interim goal” for each state to meet in 2020 and a “final goal” that states must meet beginning in 2030. These mandatory goals vary among the states, and were calculated by EPA based on four building blocks:
  1. Making coal-fired power plants more efficient;
  2. Using low-emitting natural gas combined cycle plants more where excess capacity is available;
  3. Using more zero- and low-emitting power sources such as renewables and nuclear; and
  4. Reducing electricity demand by using electricity more efficiently.
The proposal allows states latitude to determine how they will meet the regulatory goals. States have the option to use either the rate-based goal or to convert the rate-based goal to a mass-based goal. EPA has proposed that states adopt plans that incorporate a combination of “strategies,” and noted that states “may work alone or in cooperation with other states to comply with the proposed rule.” The proposed rule requires each state to submit a plan for meeting these goals to EPA by June 30, 2016. Under the proposed rule, states could either submit individual plans, or work together and submit a multi-state plan. The Clean Power Plan proposal is unique in that it involves actions “beyond the fenceline” of the regulated stationary sources. This aspect of the proposal has led many commentators to question whether the Clean Power Plan is actually federally enforceable under section 111(d) of the Clean Air Act. 

Congressional Hearings

On Tuesday, September 9, regulatory representatives from Texas, Montana, Arizona, Indiana, Rhode Island, Maryland, and Washington testified before the House Energy & Commerce Committee’s energy and power subcommittee at a hearing titled, “State Perspectives: Questions Concerning EPA's Proposed Clean Power Plan.” This was the third in a series of hearings that the subcommittee has held on EPA’s proposed rule. The subcommittee first heard testimony in June from EPA’s Acting Assistant Administrator for Air and Radiation, Janet McCabe. In July, the subcommittee also heard from the Federal Energy Regulatory Commission (FERC) Commissioners.

As subcommittee Chairman Whitfield explained, “Our oversight of EPA’s Clean Power Plan thus far has left us with more questions than answers. Neither EPA nor FERC was able to adequately explain how this sweeping takeover of our electricity sector will work or what the consequences will be for consumers and our economy. . . . The burden of implementing this plan will fall to the states, which are being asked to completely redesign their electricity systems. States will no longer be able to choose what the best electricity mix is to meet their own needs, and all energy-planning decisions will be subject to a federal veto. And it is American families and their jobs that will suffer. We look forward to hearing the states’ perspectives on EPA’s plan and how it will affect their ability to provide affordable and reliable electricity to consumers and businesses.”

California Workshop

CARB officials hosted a workshop in Sacramento to discuss EPA’s proposed Clean Power Plan rule. In advance of the meeting, CARB released a discussion paper designed to highlight some of the issues surrounding the proposal, and to generate feedback from stakeholders.

The discussion paper indicates that California is considering EPA’s suggestion that it work with other states to reach the Clean Power Plan goals. According to the paper, CARB and other California energy agency staff “are currently exploring these opportunities for coordination with other western states that participate in the Western Electricity Coordinating Council (WECC) and/or Pacific Coast Collaborative. [C]ARB and state energy staff are also having discussions with a broader coalition of states to promote support for U.S. EPA’s effort and find common ground on issues that will support a rigorous federal target for emissions reductions while giving states flexibility to innovate as they improve existing programs and develop new ones.”

The CARB paper also highlights a few of California’s key concerns with the Clean Power Plan, including:
  • Reducing duplicative regulatory procedures for state programs that meet federal requirements;
  • Fair treatment of imported and exported renewable energy in multi-state partnerships;
  • Clear guidance to allow states to assess “programmatic level compliance using existing monitoring, verification, and reporting system requirements when possible;”
  • Allowing sufficient time for states to meet EPA’s proposed goals.
CARB will collaborate with other California regulatory entities to submit comments on EPA’s proposal by the October 16 deadline.

Posted by Corinne Snow at 9/12/2014 2:06 PM

EPA Approves First CCS Injection Permits, but Challenges Remain

(Federal GHG regulations) Permanent link

On September 2, 2014, the U.S. Environmental Protection Agency (EPA) for the first time issued permits to allow a coal-fired power plant to capture its carbon dioxide (CO2) emissions and inject them into four underground wells, a process known as carbon capture and storage, or CCS. FutureGen Industrial Alliance Inc. (FutureGen) (a group of coal companies leading the project) received four identical permits to use CCS at its FutureGen 2.0 coal plant in Meredosia, Illinois. With these permits, FutureGen may begin retrofitting the existing coal fired power plant in Meredosia, and drilling the four, 4,000-foot deep wells, possibly as early as October. Once operational, FutureGen estimates that its CSS project will capture and inject 1.1 million metric tons of CO2 every year for the next twenty years – the equivalent of CO2 emissions from 232,000 cars, according to EPA. The 168-megawatt power plant is scheduled to begin operations in 2017.

EPA issued the permits under its 2010 rule under the Safe Drinking Water Act, which created a new class of Underground Injection Control (UIC) wells for CCS projects (Class VI wells). Operators of Class VI wells must meet requirements that are more stringent than those for other UIC wells, including siting and testing obligations intended to protect underground sources of drinking water from CO2 and other greenhouse gases.

The new permits require FutureGen to test and monitor the wells and submit reports to the Agency, and to secure financial assurance for $51.7 million (total for all four wells) to address the costs of future corrective action, injection well plugging, post-injection site care and site closure, and emergency and remedial response. Specifically, FutureGen must test and monitor the following: (1) CO2 stream; (2) pressure, flow, rate, volume, annulus pressure, annulus flue level and temperature; (3) corrosion; (4) external mechanical integrity testing (MIT); (5) pressure fall off; (6) groundwater quality; (7) plume and pressure front; (8) surface air and/or soil gas; (9) monitoring well MITs; and (10) financial responsibility updates. For most of these categories, FutureGen must report to the Agency on a semi-annual basis, although some categories require more frequent reporting.

These permits and the FutureGen project are important because they may influence future requirements to use CCS to mitigate greenhouse gas emissions from new and existing power plants, which some argue is not yet a commercially viable technology. A successful CCS project at the FutureGen power plant would demonstrate that CCS technology is feasible and support EPA’s proposed regulations imposing strict limits on how much CO2 new power plants can emit into the atmosphere. FutureGen faces many obstacles ahead, however, including securing private financing, a legal challenge by the Sierra Club, and a September 2015 deadline to use $1 billion in Recovery Act funding, which, if left unused, will expire. We will continue to follow this and other CCS projects and provide important updates as we learn them.

Posted by Jennifer Cornejo at 9/11/2014 2:15 PM

V&E Climate Change Report Special Issue: EPA’s Proposed Greenhouse Gas ESPS

(Federal GHG regulations, International) Permanent link
On June 18, 2014, the EPA published a proposal in the Federal Register to create greenhouse gas (GHG) emission standards for existing power plants under section 111(d) of the Clean Air Act (the existing source performance standards or ESPS). In setting the performance standards under the proposed rule, the EPA has for the first time required “beyond-the-fenceline” reductions, meaning that the GHG emission rate targets set in the rule cannot be met through installation of additional controls at affected power plants alone. This first-of-its-kind proposal will no doubt generate a significant volume of comments and subsequent litigation to determine whether the broad view of utility regulation EPA seems to adopt in its proposal reaches beyond the scope of the Agency’s legal authority under the Clean Air Act (CAA). This special issue of the Climate Change Report is devoted to EPA’s proposed ESPS and its potential consequences for the energy industry. To access a copy of the special issue, follow this link.

Posted by Margaret E. Peloso at 9/8/2014 12:23 PM

What’s the Carbon Footprint of your bowl of cereal? General Mills, Kellogg’s Announce Policies to Reduce Supply Chain GHG Emissions

(Adaptation) Permanent link

On July 28, 2014, General Mills announced a new climate policy on its blog. Last week, Kellogg’s followed suit releasing its own climate policy.

The General Mills policy begins by noting scientific consensus that global warming should be limited to 2°C and highlighting the risks associated with climate change, which include potential reductions in crop yields and reduced water availability. The policy explains that “[w]hen coupled with a global population projected to reach 9 billion by 2050, the disequilibrium of natural resource supply and human demand for both food and fuel presents a real threat to global stability.” The policy states that General Mills recognizes the risks of climate change for both global food security and for the company’s raw material supplies.

General Mills has assessed its own GHG emissions and concludes that 92% of the GHG emissions associated with its own operations are “scope 3” emissions, meaning that they result from upstream activities that are outside the company’s direct control. Further, General Mills finds that nearly 66% of the company’s GHG emissions and 99% of its water use result from agricultural activities. General Mills’ Policy then announces a suite of mitigation and adaptation actions. With respect to adaptation, the Policy declares that General Mills will undertake measures to reduce GHG emissions across its supply chain including:

  • requiring suppliers to demonstrate improvements in environmental, social, and economic outcomes;
  • addressing emissions caused by land use change through sustainable sourcing efforts, with the aim to achieve zero net deforestation in high-risk regions by 2020; and
  • contribute to cross-industry efforts to reduce food waste.

With respect to adaptation General Mills commits to investing in proprietary breeding programs to develop climate-resilient crops and engage in a variety of measures to support adaptation by its agricultural suppliers. General Mills also commits to reporting its progress against the goals established in its climate policy.

Kellogg’s climate policy also highlights the key role of agricultural emissions, stating “[w]e recognize that upstream agriculture emissions are the single largest source of emissions in our value chain and will focus our efforts on achieving agricultural emissions reductions.” Kellogg’s specifically notes the company’s efforts to stop deforestation in its palm oil supply chain, its refusal to purchase soy from tropical deforested regions, and the use of recycled content in its cereal boxes.

Kellogg’s policy announces that by 2015 the company will define and disclose a total supply chain GHG emissions reduction target that includes agricultural emissions. In order to establish a baseline and GHG reduction target, Kellogg’s announces that it will require suppliers to measure and publicly disclose their GHG emissions and reduction targets. Kellogg’s also commits to establishing a climate change adaptation strategy, with particular attention to the needs of smallholders in the supply chain by December 2015. In addition, Kellogg’s seeks to enhance its commitment to stopping net deforestation in its supply chain by expanding its current palm oil policies to other crops in the supply chain that carry a high risk of deforestation, including packaging fiber, soy, and sugar cane.

Together, these two policies highlight the importance of agricultural emissions in global food supply chains. Because of their significant purchasing power, the actions of Kellogg’s and General Mills represent a potentially important step in reducing global agricultural GHG emissions and reducing supply chain vulnerabilities through adaptation to climate change. While both policies acknowledge the need for global action to limit warming to 2°C, both also demonstrate the key role that the private sector can play in reducing global GHG emissions even in the absence of an international agreement.

Posted by Margaret E. Peloso at 8/19/2014 5:03 PM

CEQ Declines to Issue NEPA Climate Change Guidance

(Litigation) Permanent link
Last week, the Council on Environmental Quality (“CEQ”) denied a 2008 petition authored by several environmental groups seeking rulemaking to include climate-specific provisions in CEQ’s NEPA regulations. CEQ denied the petition, finding that climate change already falls within the scope of impacts that are to be considered under NEPA. At the same time, there is litigation pending in the Ninth Circuit in which plaintiffs are seeking to establish that they have standing to bring a NEPA claim where the only alleged shortcoming in the environmental impact statement relates to the inadequate assessment of climate change impacts. Together, these developments highlight the increasingly important role of climate considerations under NEPA in future energy leasing and project development.

The International Center for Technology Assessment’s initial 2008 petition asked the CEQ to amend its NEPA regulations to clarify that they require the consideration of climate change in environmental evaluations under NEPA and to issue guidance on the same. While it did not amend the NEPA regulations, CEQ issued a draft guidance document on the consideration of climate change in NEPA evaluations in 2010 that was published for public comment but never finalized. CEQ took no further action on the petition until August 7, 2014, when it denied the petition.

In its denial of the petition, CEQ stated that additional NEPA regulation is not necessary because the NEPA regulations “already encompass the consideration of climate effects . . .” With respect to additional NEPA guidance, CEQ’s denial states that it is considering how to proceed with guidance in light of the comments it received on its 2010 draft guidance. The denial also highlights other climate-related activities CEQ has undertaken and notes that at the time CEQ does not think that climate-specific amendments to the NEPA regulations are the best use of its resources.

Since CEQ issued its denial, commenters have noted that while further rulemaking on climate change under NEPA may not be necessary, additional guidance from CEQ is needed. For example, in a blog post for the Columbia Center on Climate Change Law, Michael Gerard noted that a previous study by the Center showed that federal agencies vary widely in their consideration of climate change in the NEPA process and that additional guidance would be helpful to standardize practice across agencies.

On August 8th, the Department of Justice filed a motion to dismiss and memorandum in support thereof on CEQ’s behalf in International Center for Technology Assessment v. CEQ. The memorandum argues that Plaintiffs’ claim that CEQ has failed to respond in a timely manner to their petition is mooted by CEQ’s response to their petition on August 7, 2014.

Although CEQ denied the petition for climate-specific amendments to the NEPA regulations, CEQ clearly stated that climate change impacts should be considered under NEPA.  For several years, NEPA challenges based on climate impacts have been a key component of many environmental groups’ strategies, particularly when the challenged project involves energy development or transportation. Given the CEQ’s recent statements on climate change under NEPA, it seems likely that such challenges will continue into the future.

In Montana Environmental Information Center v. BLM—a challenge currently pending in the Ninth Circuit—environmental petitioners have recently asked the court to find that they have standing to pursue a NEPA claim that is based solely on alleged deficiencies in the climate change portion of the environmental assessment for the challenged project. Plaintiffs appeal the District Court’s holding that they do not have standing to bring climate challenges under NEPA because they have not alleged specific, localized harms arising from the alleged deficiency in the environmental assessment. While BLM initially opposed Plaintiffs’ standing, it reversed course and conceded that Plaintiffs standing to bring such a challenge in a June filing, adopting the analysis of the D.C. Circuit in its recent opinion in Wildearth Guardians. However, Plaintiffs’ standing continues to be opposed by defendant intervenors in the case.

While finding that a failure to consider climate change on its own was not sufficient to give rise to standing, the D.C. Circuit in Wildearth Guardians concluded that Plaintiffs’ alleged recreational and aesthetic injuries that would result from the challenged coal leasing were indeed sufficient to give rise to standing. Once standing was established based on recreational and aesthetic injuries, the D.C. Circuit concluded: “Appellants may challenge each of the alleged inadequacies in the FEIS because each constitutes a procedural injury connected to their members' recreational and aesthetic injuries.”1

In Montana Environmental Information Center, Plaintiffs have challenged BLM’s oil and gas leasing activities under NEPA, alleging that it failed to sufficiently consider climate change impacts. Plaintiffs argue that the Ninth Circuit should adopt the D.C. Circuit’s holding in Wildearth Guardians. However, unlike the plaintiffs in Wildearth Guardians, the Plaintiffs in the Ninth Circuit allege only climate change-based injuries.

Should the Ninth Circuit follow, and arguably expand upon, the holding of D.C. Circuit to find that plaintiffs have standing to bring NEPA challenges based solely on global climate change claims, this would be a potentially important development. If plaintiffs do not have to establish local injuries resulting from alleged deficiencies in the NEPA process before raising climate challenges, the bar to standing will be lowered, making NEPA climate challenges an even more important tool for those who seek to halt energy project development. However, it is important to note that NEPA does not require that agencies reach a particular outcome, but only that they have considered the potential impacts of a project. Therefore, the inclusion of climate change impacts in environmental impact statements or environmental assessments should be sufficient to withstand future NEPA challenges—though, it cannot forestall future litigation regarding the adequacy of such analyses.

1 738 F.3d 298, 308 (D.C. Cir. 2013).

Posted by Margaret E. Peloso at 8/14/2014 4:18 PM

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