Holland & Hart's Climate Change News

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.”

ALL: Climate Change Happenings on the Hill

By: Nils Johnson, Director, Legislative & Regulatory Affairs

What does the potential for a shutdown of non-essential functions of the federal government have to do with climate change? A lot, as it turns out.

The Federal Government is currently operating under a continuing funding resolution (CR) that expires March 4, 2011. If the non-essential functions of government (which include just about everything but health and safety spending) are to remain in operation after that date, Congress must pass and the President must sign legislation to either extend government funding on a short term basis or through the end of the current fiscal year that ends midnight September 30, 2011.

ALL: Wyoming Sues EPA Challenging GHG Permitting Program

By: Jim Holtkamp

On February 10, the State of Wyoming filed petitions for review with the D.C. Circuit Court of Appeals challenging EPA rules authorizing EPA to administer the GHG permitting program in states that do not establish their own permitting programs for GHGs from major sources and major modifications of existing sources of GHGs. Texas filed similar petitions for review with the Fifth and D.C. Circuits late last year. There are seven states which failed to change their permitting programs by specified deadlines. In those states, EPA will implement a Federal Implementation Plan to administer the GHG permitting program.

ALL: New Mexico Supreme Court Orders Governor Martinez to Publish Cap-and-Trade Rules

By: Jim Holtkamp

Last month we reported that New Mexico Governor Susana Martinez had blocked the publication of GHG cap-and-trade rules that had been promulgated by the State environmental Improvement Board (“EIB”), had fired all of the members of the EIB, and appointed former U.S. Senator, astronaut, and vocal climate change skeptic Harrison Schmit as secretary of the New Mexico Energy, Minerals and natural Resources Department.

On January 26, the New Mexico Supreme Court ordered the publication of the cap-and-trade rules, which apply to facilities that emit in excess of 25,000 metric tons of CO2 per year, with the objective of reducing emissions by 3 percent per year from 2010 levels beginning in 2013.

Also on January 26, Governor Martinez announced the appointment of the new members of the EIB.

On February 10, Harrison Schmitt resigned from Governor Martinez’s cabinet rater than submit to the background check required for Senate confirmation.

ALL: California State Court Puts Hold on Climate Change Plan Implementation

By: Jim Holtkamp

On January 21, a California state judge issued a proposed decision holding that the California Air Resources Board failed to com0ply with the California Environmental Quality Act in its adoption of the plan for implementation of AB32, California’s comprehensive climate change law. Ironically (although not surprisingly), the lawsuit was brought by environmental plaintiffs, who argued that the proposed B32 rules fail to require maximum technologically feasible reductions in GHGs. Essentially, they oppose the cap-and-trade program proposed under the statute, as not achieving sufficiently stringent reductions in GHGs.

According a senior industry lawyer familiar with the case, the expectation is that the district court will either withdraw the ruling or that it will be overturned on appeal.

ALL: New Hampshire House Votes to Pull out of RGGI

By: Jim Holtkamp

In a veto-proof vote, the New Hampshire State House of Representatives voted overwhelmingly to end New Hampshire’s participation in the Regional Greenhouse Gas Initiative (“RGGI”), the first regional cap-and-trade program in the Untied States. RGGI currently consists of ten Northeastern and Mid-Atlantic states which have collectively agreed to cap and reduce CO2 emissions from the power sector 10 percent by 2018 using a cap-and-trade program.

The measure now goes to the State Senate, where republicns holde nearly a four to one advantage over the Democrats. Although Governor John Lnch (D) strongly opposes withdrawal from RGGI, it is expected that his veto will be overridden.

ENVIRONMENTAL COMPLIANCE, ENERGY, PUBLIC LANDS - Federal Litigation Update

By: Jim Holtkamp

Holland & Hart represents one of the many petitioners in litigation in the D.C. Circuit challenging various EPA rulemaking actions designed to limit the emissions og greenhouse gases (“GHGs”). The H&H team is led by Paul Phillips, with Pat Day and John Bryson taking leading roles. Our client is the Coalition for Responsible Regulation, which consists of energy producers and users in the West. The rules that are being challenged include EPA’s Endangerment Finding, which is the basis for regulation of GHGs under the Clean Air Act; the PSD Tailoring Rule, which requires permits for major sources of GHGs (described above under “Federal”); and EPA’s GHG tailpipe standards, which limits carbon dioxide emissions from new vehicles and new vehicle engines. The Coalition is one of dozens of petitioners in the litigation. Others include various states, major trade associations, and major environmental groups.  Absent intervention by Congress, the one or more of the cases may well end up in the U.S. Supreme Court.

ALL - Climate Change Action in the 112th Congress Will Be Limited to Attempts to Rein in EPA

By: Emily Schilling

With a Republican majority in the House, the pendulum on climate change legislation has swung in the opposite direction. Rather than championing comprehensive climate change legislation, EPA and the Senate Democratic leadership are on now the defensive. Senate Environment & Public Works Committee Chairwoman Barbara Boxer, D-CA, has acknowledged as much, noting that she will “stand guard” against attacks against EPA greenhouse gas (GHG) rulemakings by the House. House Republican Fred Upton, MI, the new chairman of the House Energy & Commerce Committee, stated that EPA’s regulation of GHG, which are slated to begin taking effect this year, should be delayed and is planning to hold hearings to explore the impact of such regulation on the economy. Rep. Shelley Moore Capito, R-WV, has introduced a bill in the House that would delay EPA’s GHG rules for stationary sources for two years, but other bills are pending that are far broader. 

 

ALL - Climate Change Action in the 112th Congress Will Be Limited to Attempts to Rein in EPA

By: Emily Schilling

With a Republican majority in the House, the pendulum on climate change legislation has swung in the opposite direction. Rather than championing comprehensive climate change legislation, EPA and the Senate Democratic leadership are on now the defensive. Senate Environment & Public Works Committee Chairwoman Barbara Boxer, D-CA, has acknowledged as much, noting that she will “stand guard” against attacks against EPA greenhouse gas (GHG) rulemakings by the House. House Republican Fred Upton, MI, the new chairman of the House Energy & Commerce Committee, stated that EPA’s regulation of GHG, which are slated to begin taking effect this year, should be delayed and is planning to hold hearings to explore the impact of such regulation on the economy. Rep. Shelley Moore Capito, R-WV, has introduced a bill in the House that would delay EPA’s GHG rules for stationary sources for two years, but other bills are pending that are far broader.