Climate Change

What is President H.R. Clinton’s Energy Policy?

April 7, 2016 23:04
by Tricia Caliguire
Even as the number of 2016 presidential candidates in both parties has dwindled, the media -- particularly television news -- has yet to focus on an in-depth discussion of the candidates’ policy proposals. While it was difficult to discern the energy policies that a President Trump would implement, candidate Hillary Clinton has made quite clear the energy goals that a President H.R. Clinton would set. Including her “Clean Energy Challenge,” issued last summer, and the proposal to increase energy efficiency standards that she announced in February 2016, Clinton has made very specific and far-reaching plans that would continue and expand on the Obama Administration’s policies. The focus of her energy policy is twofold – address climate change and use the clean energy industry to grow the economy and create jobs. It seems safe to say the phrase “all of the above” will not apply to the Clinton administration energy policy.

Carbon Emissions | Climate Change | Green Buildings | Regulation | Renewable Energy | Wind Energy | Solar Energy

What is President Trump’s Energy Policy?

March 2, 2016 03:29
by Tricia Caliguire
We all know where the respective party “establishments” in Washington come down on climate change, clean power, and the pace at which the country should move to renewables as the primary source of energy (if at all). President Obama gave us the Paris Climate Agreement and the Clean Power Plan; the Republic Congress is not happy about either. Earlier this year, the Supreme Court effectively shut down the discussion until judicial review of the Clean Power Plan is complete – est. circa 2017 – so, the industry may now be better served by concentrating on the energy policies of the candidates to be our next president, one of whom will soon be setting policy for the next four years.

Climate Change | Climate Change Litigation | Regulation | Renewable Energy | Wind Energy | Solar Energy | Supreme Court

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ORECs or ERCs: How Will New Jersey Pay for Offshore Wind?

October 6, 2015 22:43
by Tricia Caliguire
On November 9, 2015, the federal Bureau of Ocean Energy Management (“BOEM”) will hold the fifth auction of leases for space on the Outer Continental Shelf in the Atlantic Ocean, this one offshore New Jersey. BOEM will offer 342,833 acres in two lease blocks, enough space to support at least 3,400 megawatts (“MW”) of commercial wind generation, which – according to BOEM -- could power approximately 1.2 million homes.

Carbon Emissions | Climate Change | Legislation | Regulation | Renewable Energy | Wind Energy

How the Supreme Court Just Delayed the Clean Power Plan

July 1, 2015 21:40
by Tricia Caliguire
The Supreme Court’s decision in Michigan v. EPA holding that the Environmental Protection Agency should have considered costs when making the decision to regulate mercury emissions from power plants (the “MATS Rule”) may have put the brakes on the late-summer release of the final Clean Power Plan (“CPP”), the regulations limiting CO2 emissions from power plants – but not because EPA failed to consider the costs. They did, just not the right ones.

Carbon Emissions | Climate Change | Climate Change Effects | Renewable Energy

Pope Says No to Cap and Trade

June 21, 2015 17:49
by Tricia Caliguire
"Pope Francis Stands Up to Climate Deniers," or so says the editorial board of the Newark Star Ledger. Yes, but the headline could have read, "Pope says No to Cap and Trade." In his ENCYCLICAL LETTER LAUDATO SI’ OF THE HOLY FATHER FRANCIS ON CARE FOR OUR COMMON HOME, Pope Francis calls for an honest discussion on environmental issues that divide us, both politically and geographically. While the advance press fed expectations that the encyclical would be all about climate change and humankind’s role in causing it, our read is that the Holy See’s perspective on climate change is part of a larger message.

Climate Change | Greenhouse Gases | Regulation

Houston Flooding and Lawyers - A Climate Change Informed View

May 27, 2015 09:57
by J. Wylie Donald
"After a natural disaster, such as a hurricane, litigation often follows to determine who will pay for the consequences." Mariner Energy, Inc. v. Devon Energy Prod. Co., 690 F. Supp. 2d 558 (S.D. Tex. 2010) (considering contractual responsibility for property damage after Hurricane Rita).

Climate Change | Climate Change Effects | Climate Change Litigation | Insurance | Weather

Texas Changes the Goal(s)

April 28, 2015 12:09
by Tricia Caliguire
Some say you can't go back, but last week, I did go back -- to Austin, Texas, where I went to law school. Things changed -- the east side has been gentrified, the traffic is horrendous, and Molly Ivins is gone – and are much the same – including that having the legislature in session makes for some interesting headlines.

Climate Change | Renewable Energy | Solar Energy | solar finance

A View from the FERC - Part III - Time to Keep the Lights On

March 16, 2015 06:40
by Tricia Caliguire
Last week, FERC held the eastern regional technical conference on “Environmental Regulations and Electric Reliability, Wholesale Electricity Markets, and Energy Infrastructure.”  The purpose was for the commissioners to hear the specific issues created by EPA’s Clean Power Plan (CPP) relevant to the states, utilities, generators, consumers and transmission operators covered by ISO-New England, Inc., PJM Interconnection LLC, New York Independent System Operator, the Southeastern Regional Transmission Planning, South Carolina Regional Transmission Planning, Florida Reliability Coordinating Council, and the Northern Maine Independent System Administrator.  The overwhelming theme of the morning was that, to effectively comply with the CPP, the states, and state commissions, need more time. Most of the speakers recommended that EPA do away with the interim (2020-2029) compliance goals, complaining that there isn’t time between the likely date of the final rule (mid-summer 2015) and 2020 to plan for retirement of existing resources, and to permit, finance, and construct new natural gas combined cycle plants and the natural gas infrastructure on which these new plants will depend.  James Frauen from Seminole Electric Cooperative noted that the draft rule would require Florida to rely “almost completely” on natural gas, all of which must be imported. According to Frauen, the one new gas pipeline currently proposed to be built in Florida is already 91% subscribed.  (Not to mention that, in regulated markets, the premature retirement of coal plants means stranded assets which must be paid for by the same ratepayers who must finance the new sources.) Mike Kormos, VP of Operations for PJM, frankly stated, “[PJM] needs time and transparency.”  He explained that he couldn’t predict the impact of the CPP on reliability because of the unknowns.  “We don’t know what the final rule is,” he continued, “we don’t know what will be in the state implementation plans, and we don’t know how the market will respond.”  (Note that PJM modeled regional implementation of the CPP using the draft rules though at least one state complained that such modeling was premature.) Which begs the question: what is the rush?  Why not give the states more than one year to propose their SIPs and more than just two years for regional SIPs?  Keep in mind that the Regional Greenhouse Gas Initiative (RGGI) – a voluntary agreement – took close to five years to develop.  The answer may be found in the collision of politics and policy.  That President Obama has made the reversal of climate change, and particularly reduction of greenhouse gas emissions, a cornerstone of his second term should come as no surprise.  Between his 2008 statement that “under my plan. . . electricity rates necessarily would skyrocket,”  and his 2009 pledge in Copenhagen to reduce emissions “17% below 2005 levels by 2020,”  he made his intentions clear.  After failing to get climate change legislation through Congress in 2010, he turned to EPA.  Despite rumors that the rules had to wait until after the 2012 election, it now seems unlikely that they would have been ready before then.  What does seem likely is that the Administration wants to have the rules – and the SIPs – firmly in place before Obama leaves office, in January 2017.  Hence, the rush. When the final rule is issued this summer, as EPA continues to promise it will be, the states will have one year to file their SIPs, unless this requirement is stayed pending litigation.  After EPA reviews the SIPs, the states will have roughly two to three years to begin implementation.  The states will be in the same Catch-22 that they found themselves in with the Affordable Care Act:  Cash-strapped states may waste time and resources planning for a law that could be thrown out or substantially altered by the courts, but otherwise, they risk that the law will survive legal challenge and, by not having a SIP in place, will be subject to a less-flexible federal program.  Senate Majority Leader Mitch McConnell (R-KY) weighed in on the side of delay, warning states that submission of SIPs could subject them to “federal enforcement and expose [states with SIPs] to lawsuits.”  If the states don’t cooperate, McConnell reasons, it will “give the courts time to figure out if [the CPP ] is even legal, and it would give Congress more time to fight back.”  Supporters of the CPP responded that states who fail to design their own compliance plans will be at a “huge disadvantage.”  Meanwhile, the clock is ticking.  As FERC Commissioner Philip Moeller pointed out, “we don’t have a whole lot of time … because summer’s coming.”  

Carbon Dioxide | Carbon Emissions | Climate Change | Regulation | Utilities

EPA COMMENTS SUGGEST EMPHASIS ON CREATIVITY AND INTERNALIZING EXTERNALITIES IN CLIMATE STRATEGY

October 14, 2014 06:29
by Jameson Tweedie
The American Bar Association's Section of Energy, Environment and Resources held its Fall Conference last week.  Noteworthy from a climate perspective were the keynote address by Environmental Protection Agency Administrator Gina McCarthy, along with comments by other officials within President Obama's Administration with specific responsibility on climate issues—including Samantha Medlock, Deputy Associate Director for Climate Preparedness (White House Council on Environmental Quality); Hilary Tompkins, Solicitor (Department of the Interior); Cynthia Giles, Assistant Administrator, Office of Enforcement and Compliance Assurance (EPA); and Lorie Schmidt, Associate General Counsel of Air and Radiation (EPA).  Two repeated themes have particular resonance on climate issues. First was a repeated focus on the role of government to level the playing field.  Emphasized, for example, was the EPA’s effort to strongly enforce existing regulations and permits to eliminate competitive advantages that environmental rule-breaking gains individuals or companies over their rule-abiding competitors—in other words, to internalize the externalities associated with environmental rule-breaking.  Or, as Administrator McCarthy put it, to make compliance the efficient decision.  An analogous focus was evident on reducing the advantage the Administration believes heavy carbon-emitting companies gain over their lower-carbon competitors.  Ms. Schmidt, in particular, made clear the Administration's intent, in the wake of the authority left to the EPA by the Supreme Court in Utility Air Regulatory Group v. EPA, 573 U.S. ___ (2014), to continue imposing carbon limits on all applicable large emission sources. All indications are that the Administration is looking for opportunities to expand the reach of carbon emission limits beyond just those large sources.  The goal of leveling the carbon playing field across sources would undoubtedly have been simpler in many respects through a nationwide carbon tax or cap-and-trade system.  Indeed, John Cruden (current President of the Environmental Law Institute and nominee to head the Department of Justice’s Environment and Natural Resources Division), quoted former Secretary of State George Shultz who expressed the pressing need to put "all forms of energy production on an even playing field" by internalizing the externalities associated with carbon emissions and other pollutants.  But, with a national carbon tax or cap-and-trade system a congressional nonstarter, the Administration is left seeking a piecemeal set of solutions that, taken together, can achieve its climate goals.  This challenge seemed to lead naturally into the second theme of Administration personnel:  the need for creative solutions.  While by no means limited to climate change (for example, this was also reiterated in CERCLA and other enforcement contexts), the need for creative solutions seems particularly apt in the broad climate context facing the Administration.  That is, congressional impasse on top of stalled or snail pace efforts to reach an international framework.  Within these parameters, any significant short term climate change efforts are left to state and local action, to action within the corporate world (as former EPA head William Reilly was quoted, CEOs are the "unsung heroes" of the environmental movement, making environmental progress cost competitive) and to administrative action.  Ms. Medlock particularly pointed out the burden likely to fall on state and local government to devise innovative, cost-effective solutions to build resiliency along the coasts to the double challenge of rising sea levels and the increased storm intensity and storm surges which climate change is predicted to bring.  (Evidencing the Administration’s focus on this issue, Administrator McCarthy headed directly from the Conference to an event on Miami Beach highlighting the rising seas and extreme tides facing South Florida.)  As recent reports have indicated, while climate change impacts will be unevenly spread, no region will be spared its share of challenges, whether they be sea level rise and storm surge, flooding or drought, extreme temperatures or otherwise.  Without a doubt, creativity is required.

Carbon Emissions | Climate Change | Climate Change Effects | Rising Sea Levels

Alaska Supreme Court Opens the Door for Alternative Theory in Public Trust Litigation

September 26, 2014 08:40
by J. Wylie Donald
Co-author: Jeffrey K. Janicke As this blog has discussed on several prior occasions, Our Children&r

Climate Change | Climate Change Litigation

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