All posts tagged 'Northern Sea Route'

The Top 6 at 12: Highlights of the Top Climate Change Legal Stories in the Second Half of 2013

January 1, 2014 00:01
by J. Wylie Donald

2013 has drawn to a close; here is our take on the top six climate change legal stories in the last six months.
 
1.  Climate Change Assessments - Blockbuster legislation may have been evaded once more but that has not stopped those in the trenches. Assessments of climate change risk are becoming more routine. For example, the September 2013 Record of Decision for the Gowanus Canal Superfund Site required assessment of “periods of high rainfall, including future rainfall increases that may result from climate change” in implementing certain aspects of the cleanup remedy.  Another example was provided by the Department of Housing and Urban Development, which in November required in its second round of community block grants for disaster relief that prospective grantees consider in their Comprehensive Risk Analysis “a broad range of information and best available data, including forward-looking analyses of risks to infrastructure sectors from climate change and other hazards, such as the Northeast United States Regional Climate Trends and Scenarios from the U.S. National Climate Assessment, the Sea Level Rise Tool for Sandy Recovery, or comparable peer-reviewed information."  Even the Nuclear Regulatory Commission looked at climate change with regard to its September draft generic environmental impact statement for the long-term continued storage of spent nuclear fuel. 

2.  Low Carbon Fuel Standards - In Rocky Mountain Farmers Union v. Corey the Ninth Circuit reversed several district court rulings limiting under the “dormant Commerce clause” the California Air Resources Board’s Low Carbon Fuel Standard.  Although the Commerce clause of the Constitution, U.S. Const., art. I, § 8, cl. 3. “does not explicitly control the several states,” it "has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.’” Rocky Mountain at 31 (citation omitted). California’s Low Carbon Fuel Standard supported carbon dioxide emission reduction “by reducing the carbon intensity [i.e., the amount of carbon dioxide emitted per unit of energy produced] of transportation fuels that are burned in California.”  It thus potentially burdened producers of ethanol in the Midwest and petroleum producers outside California, but that did not matter.  Specifically, the court held that the LCFS was not facially impermissibly discriminatory in favor of ethanol, was not improperly extraterritorial and did not discriminate against petroleum fuels.  Accordingly, California is still on its path to a reduction in the carbon intensity of its fuels by 10% by 2020, as mandated by the 2006 Global Warming Solutions Act.

3.  The Cost of the Grid - On November 14, the Arizona Corporation Commission ruled that Arizona's net metering program should spread the cost of maintaining a reliable grid among all of Arizona Public Service's customers, including its rooftop solar customers. Up to that point rooftop solar customers were paid for the electricity they provided to the grid at retail rates, without any adjustment for the cost of the grid. The Commission concluded that this resulted in a "cost shift" from customers that were paying for the grid, to rooftop solar customers, who weren't.  APS put on a good case demonstrating that rooftop solar customers were substantially benefitting from the grid by drawing power at night, during cloudy weather and during the periods of daylight when solar power production did not exceed the customer's needs. Many have criticized solar power as unfairly subsidized. In Arizona at least, one of those subsidies is being addressed.

4.  New Carbon Dioxide Emission Standards - Following over 2.5 million comments, EPA rescinded its proposed rule governing carbon dioxide emissions from new coal-fired power plants.  In its place it proposed on September 20 a rule setting CO2 emission standards for new large natural gas power plants (1,000 lbs/MW-hr), new small natural gas power plants (1,100 lbs/MW-hr), and new coal-fired power plants (1,100 lbs/MW-hr).  From our perspective, the most significant facet of this new rule is that it actually will apply to plants that are being built.  The withdrawn proposed rule only applied to new coal plants, which EPA concluded would not be built anyway before 2030.  Equally significant, as pointed out in EPA’s news release  on the proposal, is that “EPA has initiated outreach to a wide variety of stakeholders that will help inform the development of emission guidelines for existing power plants.”

5.  The Fifth Assessment Report of the Intergovernmental Panel on Climate Change – The IPCC’s Working Group I issued The Physical Science Basis, its part of the Fifth Assessment Report.  Working Groups II and III will publish in 2014.  Among other things WG I concluded:  "Unequivocal evidence from in situ observations and ice core records shows that the atmospheric concentrations of important greenhouse gases such as carbon dioxide, methane, and nitrous oxides have increased over the last few centuries."  "The temperature measurements in the oceans show a continuing increase in the heat content of the oceans.  Analyses based on measurements of the Earth's radiative budget suggest a small positive energy imbalance that serves to increase the global heat content of the Earth system.  Observations from satellites and in situ measurements show a trend of significant reductions in the mass balance of most land ice masses and in Arctic sea ice. The ocean's uptake of carbon dioxide is having a significant effect on the chemistry of sea water."  But if one remains skeptical, this consensus view of the world’s leading climate scientists should not cause one alarm, the climate change skeptics have not thrown in the towel.  For example, according to one website, “climate science as proclaimed by the IPCC is a morass where what is scientific knowledge cannot be easily separated from speculation and what is wrong.”  One won't find seafarers plying the Northern Sea Route in the skeptic camp, however.  Russia logged a record year of transits in 2013 (over 200), up from just 4 in 2010. 

6.  Climate Change Liability Lawsuits - For the first time since 2005, when Comer v. Nationwide Mutual Insurance was filed, there is no climate change liability lawsuit on the docket anywhere. All have been defeated. Comer was the last to succumb, with its opportunity to file a petition for certiorari expiring on or about August 14.  The IPCC Fifth Assessment establishes climate change is not going away, but we will have to wait to see if anyone is going to attempt to make someone pay for it.

Carbon Dioxide | Climate Change | Regulation | Solar Energy | Utilities | Year in Review

On Inaugurations and Liberal Catechisms: Climate Change Makes It Back On the National Agenda

January 24, 2013 00:44
by J. Wylie Donald

Who knew that civil rights started with an "S" as in Seneca Falls, Selma and Stonewall? In case you missed it Monday, President Obama laid out an ambitious agenda as he began his second term and delivered his second inaugural address.  Besides mentioning these turning points in the nation's march to equality, he also carried the torch for a strong response to climate change. The President did not mince words:

We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.

Critics will immediately and correctly point out that there is no evidence that climate change caused a specific wildfire or hurricane. (We are not so sure droughts cannot be attributed.)  

But the critics don’t get a free pass either.  This is from the editorial page of Monday’s on-line Wall Street Journal

 One of his most passionate moments was even devoted to addressing “climate change,” of all things.  He rarely mentioned the subject in the election campaign.  But doing something about global warming is a commandment in the modern liberal catechism, and now Mr. Obama says it will be a major priority in the next four years.  He even used the stock liberal description that those who disagree with him on climate change “deny” scientific fact.  It’s another example of deliberately stigmatizing his opposition.

By our dictionary, a “modern liberal catechism” would entail a set of questions and answers; hence, referring to commandments seems to be mixing Mosaic and Jesuitical metaphors.  And castigating Mr. Obama for stigmatizing his opposition, is "the pot calling the kettle black" when the editorial spits out “liberal” as if it is a synonym for “demonic.”

But we try to avoid getting embroiled in the politics of climate change and seek to stay focused on the facts.  Here is the catechism we use in assessing climate change:  How do we know climate change exists?  Follow the money. 

We gave a talk last week, Climate Change:  Uncovering Risks in a Warming World.  To introduce the subject and demonstrate it is real, and that it is now, we gave two examples.  As reported in the Wall Street Journal, last November a Russian LNG tanker made the trip from Norway to Japan for the first time using the Northern Sea Route, that is, across the Arctic Ocean north of Russia.  An LNG tanker costs in the vicinity of $200 million, which apparently the ship’s owner and its insurers felt safe in risking.  They are not alone, traffic along the Northern Sea Route has risen steadily in the past few years.  Why?  Money.  The estimated savings in sailing the much shorter route could be $3 million.  The other example concerned winegrowing.  Denmark, to our amazement, makes a world-class sparkling wine.   How can this be?  Wine-growing regions are migrating.  According to a study by the National Academy of Sciences, current winegrowing regions will shrink by 80% by 2100; the UN estimates viticulture will migrate north by over 100 miles as certain areas become too hot and too dry.  So what are viticulturists doing?  They are buying properties further north, on north-facing slopes and at higher altitudes.  Again, people are making investment decisions based on the changing climate.  Is climate change real?  Follow the money.

Which takes us back to the contents of the second inaugural address, or, rather, what was not in the contents.  There was no thoughtful alliteration of turning points in the nation’s march to mitigating and adapting to climate change for the simple reason that Copenhagen, Cancun and Qatar haven’t turned us at all.  If the President is going to deliver on his promise, he is going to have to change that.

Climate Change


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