Holland & Hart's Climate Change News

CARB Reaffirms Cap-and-Trade Program

By James Holtkamp

On August 24, the California Air Resources Board voted to reaffirm the AB32 cap-and-trade program. The reaffirmance comes in the wake of a legal challenge by public interest groups, afdter a San Francisco judge in March ordered CARB to undertake a more comprehensive analysis of the alternatives to the cap-and-trade program. The plaintiffs allege that a cap-and-trade program will allow polluting facilities to continue at current levels of emissions, to the detriment of nearby low-income communities.

Once implemented, the California cap-and-trade program will cover greenhouse gas emissions at over 600 facilities and will be three times as big as the Regional Greenhouse Gas Initiative, which is a cap-and-trade program involving power plants in a number of eastern states. The California program will be the biggest in North America and one of the biggest in the world. It is expected that by 2016, the value of the allowances trades in California will be about $10 billion.

Court Decision Requiring Endangerment Finding for Aircraft GHG Emissions Could Affect Similar Petitions Under NAAQS & NSPS Provisions

By James Holtkamp & Emily Schilling

A federal court in Washington, D.C., has ordered EPA to determine whether greenhouse gas (GHG) emissions from aircraft are a threat to public health and the environment in a decision that may affect pending petitions before EPA requesting endangerment findings under other provisions of the Clean Air Act (CAA). Center for Biological Diversity v. EPA, D.D.C., No. 10-00985, 7/5/11. 

The court held that the mandatory language of Section 231 of the Clean Air Act, which provides that EPA “shall, from time to time, issue emission standards” for air pollutants for aircraft engines that EPA determines “may reasonably be anticipated to endanger public health or welfare,” imposes a “non discretionary obligation on EPA to make endangerment findings.”  If EPA finds that aircraft GHGs pose a reasonable threat of endangering public health or welfare, EPA acknowledges that the CAA “creates a post-endangerment finding duty to regulate …”

Polar Bear Listing Survives Challenge

By James Holtkamp

On June 30, the U.S. District Court for the District of Columbia dismissed challenges by the State of Alaska and other parties to the listing of the polar bear as a threatened species under the Endangered Species Act.  In Re polar Bear Endangered Species Act and 4(d) Rule Litigation, D.D.C., 1:08-mc-764, 6/30/11. The court deferred to the U.S. Fish and Wildlife Service and held that the challenging parties had failed to show that the Service had not acted rationally in making its determination. The court refused to determine whether the agency could have reached a different conclusion with regard to the listing. Rather, the court noted that its role is limited to determining “whether the agency’s decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based on the evidence before the agency at that time.”

"Public Trust" Theory Advanced to Force Climate Change Regulations

by Bill Mercer

Lawsuits and petitions for rulemaking to force states and the federal government to control GHG emissions have been filed in all 50 states, the District of Columbia, and federal court in California. The filings are part of a nationwide initiative coordinated by Our Children’s Trust, an Oregon non-profit. In virtually all of the states in which lawsuits have not been filed, lawyers have filed petitions with state environmental quality agencies on the same theory. The theory is drawn from a law review article by a professor at the University of Oregon School of Law. Mary Christina Wood, Advancing The Sovereign Trust of Government To Safeguard The Environment For Present and Future Generations (Part I): Ecological Realism And The Need For A Paradigm Shift, 39 Envtl. L. 43 (2009).

Climate Change a Key Factor in Fish & Wildlife Service Plan to Consider Protecting Hundreds of New Species

by Alison Suthers

A new proposal from the U.S. Fish and Wildlife Service (“FWS”) establishes a five-year plan to consider protecting hundreds of new species, many of which FWS says are imperiled by climate change, under the Endangered Species Act (“ESA”). The proposal means that project developers may have to consider mitigating climate-based impacts on newly protected species sooner rather than later.

Federal Court Orders EPA to Issue Power Plant Permit Exempted From GHG Controls; EAB Review Potentially Bypassed

by Jim Holtkamp

On May 26, U.S. District Court Judge Richard Leon of the District of Columbia issued a ruling requiring EPA to issue a final air permit reviewable only in federal court for the 640-megawatt Avenal natural gas power plant in California by August 27. Judge Leon held that EPA had flagrantly violated a Clean Air Act requirement that EPA grant or deny permits within twelve months after receiving a completed application. The application has been pending since 2008.

Given that the application was pending as of January 2, 2011, the effective date of the EPA’s GHG Tailoring Rule, EPA offered to issue the permit without GHG requirements, a move adamantly opposed by environmental groups.

California Court Prohibits Cap-and-Trade Implementation

by Jim Holtkamp

On May 20, 2011, a California Superior Court judge issued an order prohibiting the California Air Resources Board (“CARB”) from taking any steps to implement the cap-and-trade program proposed as part of the rules implementing the AB32 climate change program. The order is the latest in a series of decisions in Association of Irritated Residents v. California Air Resources Board, in which the court previously held that CARB had failed to comply fully with the California Environmental Quality Act in developing the cap-and-trade program because it failed to analyze fully alternatives to achieving the greenhouse gas reduction goals of AB32. CARB is prohibited from taking any further steps to implement the proposed cap-and-trade program until it has completed a new environmental analysis involving public notice and comment.

Climate Change Litigation—U.S. Supreme Court Hears Oral Argument in Global Warming Public Nuisance Case

By Maryt Fredrickson

On April 19, the United States Supreme Court heard oral arguments in American Electric Power Co. v. Connecticut. The case, on appeal from the Second Circuit, will determine whether industries that emit greenhouse gases can be sued under a federal common law theory of public nuisance. See Holland & Hart’s March 2011 Climate Change Newsletter. The issues in this appeal address the standing of the plaintiffs, the scope of the court’s jurisdiction under the political question doctrine, and the extent to which the federal common law claims are displaced by the Clean Air Act.

ENVIRONMENTAL LITIGATION; ENVIRONMENTAL COMPLIANCE: CLIMATE CHANGE LITIGATION: D.C. Circuit Sets Briefing Schedule for Consolidated Litigation Challenging EPA GHG Emissions Rules

By Emily Schilling

The United States Court of Appeals for the D.C. Circuit issued the briefing schedules this month for the Coalition for Responsible Regulation v. E.P.A. consolidated litigation challenging a suite of EPA’s greenhouse gas (“GHG”) rulemakings, with staggered briefing starting at the end of May. Holland & Hart is representing the Coalition for Responsible Regulation in each of these cases. The opening briefs for the case challenging the EPA’s finding that GHG endanger public health and welfare are due May 20th; with briefs challenging the EPA rule setting GHG standards for cars and light-duty trucks, and EPA’s “tailoring rule” (designed to initially limit GHG permitting to large emitters) and “timing” memorandum (designating the date on which mobile sources are regulated as the trigger for stationary source regulation) due June 3rd and June 20th, respectively. Briefing will be wrapped up by December 14, 2011 and oral argument is expected in early 2012. The panel hearing the cases may not be identified until the court sets a date for oral argument—likely in January of 2012.

ENVIRONMENTAL LITIGATION; ENVIRONMENTAL COMPLIANCE: California Court Halts Cap and Trade Rulemaking

By James Holtkamp

On March 18, the Superior Court of San Francisco County made permanent the proposed decision issued in January (see last month’s Climate Change News) holding that the California Air Resources Board (“CARB”) had failed to comply with the California Environmental Quality Act in implementing cap-and-trade rulemaking under California’s comprehensive climate change law. Association of Irritated Residents, et al. v. California Air Resources Board, et al., Case No. CPF-09-509562 , Superior Ct., County of San Francisco (March 18, 2011).