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