Holland & Hart's Climate Change News

Withdrawal From RGGI Vetoed by New Hampshire Governor

By James Holtkamp

In an act illustrating the tension between conservative state legislatures and more moderate chief executives, New Hampshire Governor John Lynch (D) vetoed legislation that would have withdrawn New Hampshire from the Regional Greenhouse Gas Initiative (RGGI). RGGI consists of a number of New England and Mid-Atlantic states and operates a cap-and-trade program dealing with emissions from power plants in the region. Although the state House of Representatives voted twice to override the repeal, the Senate override vote fell short of the required two-thirds majority.

Both sides of the issue argued that the other side's position would cost jobs and hurt the state's economy, with the governor arguing that withdrawal from RGGI would result in New Hampshire ratepayers subsidizing energy efficiency in other states and the Republicans in the legislature claiming that the cost of the RGGI allowances is a tax on electric generators.

Legislative Activity on Climate Change Overshadowed by Debt Ceiling Negotiations

By Nils Johnson

Climate change legislation continues to be a non-starter in the Congress and has been overshadowed by the negotiations over the debt limit extension. 

The Congress and the Obama Administration are focused on the August 2 deadline when the federal government’s ability to borrow money will run up against the current debt ceiling. With this focus, the issues of climate change and greenhouse gas legislation have taken a back seat, as have most other issues that would be addressed by authorizing legislation.

Authority of New Mexico Environmental Board to Issue GHG Emissions Rule Upheld by State Supreme Court

By James Holtkamp

On July 27, the New Mexico Supreme Court issued a decision affirming an appellate court ruling that the New Mexico Environmental Improvement Board has the authority under state law to consider and act on petitions to repeal the GHG emissions rules issued by the Board last year. New Energy Economy v. Vanzi, No. 33,074, S.Ct. N.M., 7/27/11. Incoming Governor Susana Martinez unsuccessfully tried to block the implementation of the rules in January. When that effort was blocked by the courts, she made an unsuccessful attempt to repeal the rules via legislation.

The Supreme Court also granted intervention in the proceedings before the Board to the environmental group New Energy Economy. 

U.S. Supreme Court Unanimously Holds That Courts Cannot Limit GHG Emissions Under Federal Common Law

On June 20, 2011, the United States Supreme Court issued a decision reversing the decision of the U.S. Court of Appeals for the Second Circuit, which had held that federal common law provides a basis for eight states, New York City, and three nonprofit organizations to seek reductions in greenhouse gas emissions from large coal-fired power plants. American Electric Power Co. v. Connecticut, No. 10-174 (June 20, 2011).

The unanimous Court, in an opinion written by Justice Ginsburg, held that the Clean Air Act displaces federal common law claims seeking abatement of greenhouse gas emissions. Justice Sotamayor recused herself, having sat on the Second Circuit panel that heard oral arguments in the case.

Montana Supreme Court Dismisses Climate Change Petition

By Bill Mercer

On June 15th, the Montana Supreme Court dismissed the petition for original jurisdiction in Barhaugh v. Montana, No. OP 11-0258, without reaching the merits. The petition is part of a nationwide initiative involving lawsuits and administrative petitions in all fifty states, the District of Columbia and the federal court in the Northern District of California. The initiative is primarily driven by an Oregon non-profit called Our Children’s Trust. The plaintiffs in the various actions argue that the state and federal government are trustees of the atmosphere and other common resources and thus have a duty to protect the atmosphere from the introduction of anthropogenic greenhouse gases by establishing limits on GHG emissions. The Montana Supreme Court ruling is the first significant response in the various lawsuits. The administrative petitions are still wending their way through the various state agency processes.

"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).

New Jersey Withdraws from RGGI

by Jim Holtkamp

On May 26, New Jersey Governor Chris Christie announced that New Jersey will be withdrawing from the Regional Greenhouse Gas Initiative (“RGGI”). RGGI was formed by nine New England and Mid-Atlantic states to address GHG emissions from electric generating facilities in the region through a cap-and-trade program. The first allowance auction under the RGGI program was held in 2008.

EPA and Utah DEQ Differ on CO2 Controls for New Power Plant

By Jim Holtkamp

In comments on the proposed Approval Order (major source air permit) by the Utah Department of Environmental Quality (“DEQ”) for PacifiCorp’s proposed Lake Side gas-fired power plant, EPA criticizes DEQ for not setting numeric emission limitations for CO2 emissions from the plant. DEQ had made a finding that requirements for efficient turbines satisfy EPA guidance on Best Available Control Technology for major sources of greenhouse gases.

Washington, D.C. Update

By Nils Johnson

As the GHG battles progressed in the first week of April, four different amendments to spending bills limiting EPA’s rulemaking authority were proposed in the Senate. Although 64 Senators voted in favor of at least one of the proposals, there were not enough votes for any single amendment to stop the Agency from regulating GHG. The offered amendments were significantly different from each other, and the ideological and political divisions among the bills’ supporters made it difficult to forge an agreement on any single proposal.

GOVERNMENT RELATIONS – FEDERAL: All Federal Agencies to Implement Climate Change Adaptation Plans

By Maryt Fredrickson

On March 4th, the Council for Environmental Quality (CEQ) issued Instructions for Implementing Climate Change Adaptation Planning (Implementing Instructions) which set out a step-by-step timeline for all federal agencies to implement three to five climate change adaptation actions by the end of fiscal year 2012. In addition to these targeted short-term actions, the Implementing Instructions encourage agencies to integrate climate change adaptation into agency programs and operations as a standard practice and coordinate with each other to address adaptation issues that overlap agency jurisdictions.