Readers may recall that nearly a year ago, we reported that Indeck Energy had sued several New York state agencies, along with Gov. David Patterson, to halt implementation of the Regional Greenhouse Gas Initiative (RGGI) – the regional cap-and-trade scheme adopted by ten northeastern states, including New York.  Indeck’s lawsuit alleged that New York did not have legal authority to join the cap-and-trade system without authorization from the state legislature, and that a multi-state system such as RGGI cannot exist without Congressional authorization.  It also alleged that RGGI places an unfair tax on electric generators in New York who are bound by long-term contracts.

(Before we go on, it’s helpful to throw out some background:   RGGI requires covered power plants to purchase carbon allowances to offset their CO2 emissions.  Indeck owns an electricity-generating facility in Corinth, New York, and has a long-term contract with Con Edison of New York by which it sells most of the electricity generated at the Corinth plant to Con Edison.  However, Indeck’s contract prohibits it from passing on the added expense of buying carbon allowances to Con Edison.

In anticipation of this problem, the state set aside 1.5 million allowances/year to distribute among qualifying power plants that were locked into long-term contracts.  After determining that 1.5 million was insufficient to cover demand, the state decided to divide the set-aside allowances among qualifying power plants on a pro rata basis.  This shortfall seems to be what prompted Indeck to sue New York for its allegedly unconstitutional, and arbitrary and capricious, participation in RGGI.)

Little happened with the lawsuit over the past year:  the respondents filed motions to dismiss in May and the case was transferred from Saratoga Supreme Court to Albany in July.  Last month, however, New York announced that it had settled Indeck’s lawsuit, releasing a consent decree to which all parties, including Con Edison and two intervening energy companies also in long-term contracts with Con Edison, have agreed.  Under the decree: Read more »

Per yesterday’s review of Sen. Lisa Murkowski’s efforts to gut the Clean Air Act so the EPA cannot regulate greenhouse gases, the Washington Post reports today:

Sen. Lisa Murkowski (R-Alaska) offered legislation Thursday afternoon to overturn the Environmental Protection Agency’s finding that greenhouse gas emissions endanger public health and welfare.

The resolution of disapproval under the Congressional Review Act, a rarely used legislation maneuver, directly challenges the Obama administration’s right to regulate greenhouse gases on its own. Sen. Blanche Lincoln (D-Ark.) joined Murkowski in sponsoring the measure.

Murkowski questioned why “bureaucrats” in Washington “are contemplating regulations that will destroy jobs while Americans are doing everything they can just to find one.”

“We should take the EPA regulations off the table,” she said in a floor speech, adding that Congress will eventually be able to craft a bipartisan response to the question of climate change. “We are not incapable, or even unwilling, to legislate on this topic… We’re being presented with a false choice between unacceptable legislation, and unacceptable regulations.”

In addition, two more Democratic Senators, Mary Landrieu of Louisiana and Ben Nelson of Nebraska, have also co-sponsored the resolution.

More news when we see where this is going.  Today has been a busy today, per the Supreme Court’s alarmingly activist ruling this morning in Citizens United v. FEC.

There has been much chatter this week about Sen. Lisa Murkowski (R-Alaska), and her ongoing threat to introduce a (supposedly imminent) legislative amendment that would strip the EPA of its authority to regulate greenhouse gas emissions from vehicles and power plants under the Clean Air Act.

Since as far back as September, the Senator has been seeking collaborators in Congress to amend the Clean Air Act so that it cannot be used to tackle greenhouse gases.  The proposed amendment comes in anticipation of EPA regulations targeting greenhouse gas emissions from stationary sources, which may be forthcoming following last year’s “endangerment finding” for CO2.  If successful, Murkowski’s efforts would effectively negate the Obama Administration’s progress over the past year toward complying with the Supreme Court’s 2007 ruling in Massachusetts v. EPA – progress we recently argued was the most important and promising development to date in the fight to tackle climate change in this country.

Despite the hullabaloo, as of today Murkowski has yet to actually produce an amendment.  We have, however, learned two interesting facts about the Senator in the past few days:  (1) (courtesy of Greenwire, via Climate Progress) in the 2009-2010 election cycle, Murkowski was the single biggest recipient of campaign contributions from the electric utility industry in all of Congress, in addition to receiving hundreds of thousands of dollars more in contributions from the oil and gas industries; (2) (courtesy of the Washington Post) Murkowski’s original proposed amendment was drafted primarily by two high-profile Washington lobbyists, both of whom are former Bush Administration EPA employees and represent “multiple clients with an interest in climate legislation pending before Congress.”

In other words, Murkowski appears to represent the energy industry, and a voted-out-of-office administration, in her bid to gut the Clean Air Act. Read more »

A coalition of bio-fuel producers has filed a federal lawsuit against California, alleging that the state’s newly-adopted “low carbon fuel standard” is unconstitutional because it is preempted by federal law and violates the so-called “dormant Commerce Clause.”

California’s low-carbon fuel standard would govern the “carbon intensity” (a measure of the amount of carbon emitted during the entire lifecycle of fuel, from planting to consumption by the end user) of all transportation fuels sold in the state.  The California Air Resources Board approved the standard last year as part of California’s comprehensive 2006 Global Warming Solutions Act.

On Dec. 28, five groups – the Rocky Mountain Farmers Union, Redwood County Minnesota Corn and Soybean Growers, Penny Newman Grain, Inc., Growth Energy, and the Renewable Fuels Association – filed a lawsuit challenging the standard in the U.S. District Court for the Eastern District of California, seeking temporary and permanent injunctions to stop the regulation’s implementation.

In their complaint, the groups allege first that the standard is preempted by federal law, specifically the Energy Independence and Security Act of 2007 (EISA), which they claim “expressly exempted existing corn ethanol biorefineries… from the requirement of having to claim or demonstrate reductions in GHG emissions.”  According to the groups, California’s standard “interferes with and frustrates the EISA because it effectively excludes ethanol production facilities operated by [plaintiffs] from participating in the market for ethanol as a blending fuel for gasoline for sale in California,” and creates “a different and conflicting set of incentives for ethanol producers from those adopted by Congress.”

Second, the complaint alleges that the new California standard violates the so-called “dormant Commerce Clause” — a doctrine read into the Commerce Clause by the courts that prohibits states from impermissibly discriminating against interstate commerce.  Here, the plaintiffs claim that the new standard’s proposed method of determining the carbon intensity of fuel (which includes examining emissions from shipping and delivery) “facially and unconstitutionally discriminates against Midwest corn ethanol producers and importers by assigning them relatively higher total carbon intensity values vis-à-vis California corn ethanol producers…principally because Midwest corn ethanol originates out of state.”

Warming Law will report more on this case, including California’s response, when new information is available. The case is Rocky Mountain Farmers Union et al. v. Goldstene (E.D.C.A. 09-02234).

For good reason, many climate activists view 2009 as a disappointing year, filled with bad news coverage and missed opportunities.  The Senate seems a long way from passing a clean energy jobs bill, and the long-anticipated U.N. summit in Copenhagen has come and gone, producing only an unambitious, non-binding agreement among world leaders.  Moreover, late last year, the climate movement suffered a blow to its image following the “Climategate” hacking scandal and reports that, for the first time in years, a decreasing number of Americans believe in man-made climate change.  As we enter 2010, many climate activists say the situation is bleak.

But looking more closely at what transpired in 2009, and by focusing on actions by the Obama EPA, the states, and the courts, we can see that real progress was in fact made last year.   A year ago, Warming Law published a four-part blog series entitled “President Obama’s Roadmap to Cap-and-Trade,” the general thesis of which was that the Administration could and should use its authority under the Clean Air Act to introduce greenhouse gas regulations without congressional approval – partly to prod Congress into passing a tailor-made climate bill, but also to serve as a critical regulatory “back-up plan” in the event Congress fails (as it has done so far) to pass legislation.  We also argued that action by states could serve a similar dual function of prodding Congress to act and supplying a layer of climate regulation that would limit greenhouse gas emissions until Congress gets its act together.

It is no small feat that many of our recommendations and predictions from the “Roadmap” have been realized:  despite other setbacks, the U.S. has now adopted its very first nationwide auto emission standards for greenhouse gases, and is poised to adopt its first set of mandatory, federal power plant regulations specifically targeting greenhouse gases.  Ongoing state action has resulted in the country’s first mandatory cap-and-trade scheme for greenhouse gases, and a significant revival in tort-based climate litigation may soon lead to yet another source of protection from (and pressure on) firms that emit greenhouse gases.

These changes are very important. Not only are they successfully increasing pressure on Congress to address climate change legislatively, but they are reducing emissions now and setting the foundation for more comprehensive reductions in the future.  After the jump, we will briefly review the successes of 2009, and explain why together, they indicate we are in a much better place at the start of 2010 than some might think. Read more »

As anticipated, industry groups have formally filed a short petition for review of the EPA’s endangerment finding, finalized in December, with the U.S. Court of Appeals for the District of Columbia Circuit.

The challenge, filed Dec. 23, was brought by four coal companies (Great Northern Project Development, L.P., Rosebud Mining Company, Massey Energy Company, and Alpha Natural Resources, Inc., ), two trade associations (Industrial Miners Association, National Cattlemen’s Beef Association), and the curiously-named (and apparently website-less) Coalition for Responsible Regulation, which identifies itself as a non-profit corporation founded “for the purpose of promoting social welfare, particularly to ensure that the Clean Air Act is properly applied to greenhouse gases,” and which says its members include “businesses and trade associations of businesses engaged in activities that would likely be subject to regulation under the Clean Air Act for greenhouse gas emissions.”  Petitioners’ substantive motions are currently due in early February.

Stay tuned to Warming Law for more information about this case as it becomes available.  The case is Coalition for Resp. Regulation, et al. v. EPA (D.C. Circuit, 09-1322).

Warming Law is taking a posting hiatus until January 4, 2010, to contemplate the climate and the copious amounts of snow that have just been deposited on our offices. We wish all our readers a very happy holiday season, and look forward to another year of tracking progress in climate litigation in the New Year!

E&E reports yesterday that several Republicans in Congress are attempting to overturn the EPA’s recent endangerment finding for CO₂, which has opened the door to EPA regulation of greenhouse gases under the Clean Air Act.  According to E&E (subscription required):

Reps. Joe Barton of Texas and Darrell Issa of California said they and other House Republicans will introduce a formal resolution disapproving the Obama administration’s decision to proceed with the finding that sets a stage for broad industry regulations of the heat-trapping emissions….

Sen. Lisa Murkowski (R-Alaska) announced plans Monday to introduce a joint resolution to veto the endangerment finding. The senator’s resolution would signal congressional disapproval of the finding and would block it from having any force or effect.

Behold, if you care to, Reps. Barton’s and Issa’s “assault” against the endangerment finding:

Meanwhile, Sen. Murkowski seems to be renewing her previous, and failed, attempt to strip EPA of its authority to regulate greenhouse gases under the Clean Air Act, authority that the Supreme Court held in Massachusetts v. EPA the agency currently has.  E&E reports that, according to Sen. Murkowski’s office, Sen. Lindsay Graham (R-SC) has agreed to co-sponsor Murkowski’s latest resolution in the Senate – at the same time that he is working on a compromise climate bill with Sens. John Kerry (D-MA) and Joe Liebermann (I-CT).

The legislators have claimed that the Obama Administration made the endangerment finding simply to make itself look good in Copenhagen –ignoring the important reality that  the finding strengthened the U.S.’s position in Copenhagen (as Warming Law has observed), as well as ignoring the fact that the Obama team pledged during last year’s campaign to take action on climate change via the Clean Air Act if Congress failed to make progress on a climate bill.

As always, it’s curious to see Republicans move so quickly to block action on a problem like climate change, while moving so slowly to actually address the problem.  Fortunately, given that any effective resolution overturning the endangerment finding will require President Obama’s signature (not to mention first being passed by both Houses), it seems unlikely that these efforts will go very far.

Predictably, the Competitive Enterprise Institute (CEI) has announced its intention to sue the EPA in federal court, seeking  to overturn the agency’s recent endangerment finding for CO₂ “on the grounds that EPA has ignored major scientific issues, including those raised recently in the Climategate fraud scandal.”

To the best of our knowledge, this will be the first lawsuit challenging the EPA’s endangerment finding.

CEI is expected to file a Petition for Review with the D.C .Circuit at some point in the next 60 days.  Stay tuned to Warming Law for updates on this case as more information becomes available.

Today the Washington Post editorial page joined that chorus of praise for the EPA’s recent finalization of the long-awaited endangerment finding of CO2, noting that it can and should prod Congress to take up the task of passing a meaningful climate bill.

We (of course) agree with this editorial, but we find it especially notable given that it falls in stark contrast to a piece the Post published back in September, which strongly criticized EPA for starting down this path, and urged the agency to wait for Congress to act.  We noted the flaws with this approach in a pointed piece called “If You Can’t Say Something Helpful, Don’t Say Anything At All.”

We are delighted to see the has elected to say something helpful, rather than nothing at all.