Using the Law to Promote Renewable Energy, Environmental Business and Sustainability
ABOUT ME
This blog is maintained by Stephen Filler, a New York-based attorney with expertise in business law, contracts, intellectual property and litigation. He represents a wide variety of businesses, technology, media companies and individuals. He also provides legal and consulting services to sustainable, environmental and renewable energy businesses, non-profit organizations and trade organizations. He is on the board of the New York Solar Energy Industries Association and Secretary of the Hudson River Sloop Clearwater. His business website is www.nylawline.com. The Green Counsel consulting website is www.greencounsel.com.
New York's Governor Spitzer announced today a major plan to cut New York's energy consumption 15% from levels predicted by 2015 -- an energy reduction level that is reportedly more aggressive than any other state's plan to reduce global warming. Specifically, the plan will meet increased demand by implementing aggressive peak energy load reductions rather than by building new plants. Elements of the plan include:
1) More efficient buildings and appliances with new legislation setting standards for inefficient appliances.
2) State agency approval of 21 contracts for renewable energy power plants delivering 800 MW of electricity that will replace heavily polluting plants (expected to be completed by 2008).
3) Breaking the gridlock on passage of Article X, New York's power plant siting law, that will speed construction of clean plants.
4) Supporting long term contracts between developers of power plants and utilities, that hopefully will provide enough expected revenues for investors to support new plant construction.
5) New York Public Service Commission agrees to the concept of decoupling that will allow utilities to make money even when utilities impose energy conservation mechanisms.
Big news from Washington today: the Supreme Court ruled in a 5-4 decision that the Clean Air Act gives the Environmental Protection Agency authority to regulate emissions of greenhouse gases.
The Court ruled that the states had the right to sue the EPA to challenge its decision, and that the Clear Air Act gave the EPA authority to regulate tailpipe emissions of greenhouse gases.
Additionally, the Court ruled that the EPA had to re-examine the EPA's position that it had discretion not to regulate greenhouse gas emissions. The Court said the agency has so far provided a "laundry list" of reasons that include foreign policy considerations, but it must tie its rationale more closely to the Clean Air Act.
As the Court said, the "EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change."
In a major shift in policy, three major energy lobbying groups -- the Edison Electric Institute, the American Gas Association, and the Electric Power Supply Association -- have reversed their position and now support compulsory controls on their carbon emissions. Members of the largest group, the Edison Institute, are responsible for 60 percent of the nation's electricity.
The good news is that this is a sure sign that there will soon be global warming legislation passed by Congress. The bad news is that there will be enormous pressure for a watered down bill that will preempt more meaningful state action.
An article in the Wall Street Journal indicates that the groups' shift in policy was a pragmatic decision to ensure they have places at the table when inevitable national policy on climate change is developed. The American Gas Association, which was publicly against any federal climate change legislation and that represents 200 utilities that distribute natural gas, reportedly "reversed itself because of growing signs that Congress could pass mandatory controls."
Let's see -- if I was one of Dick Cheney's duck hunting buddies would I want a law that I could control now, or take a chance with a unknown Democrat or Republican like John McCain?
Fred Krupp from Environmental Defense was interviewed on NPR on the TXU deal. As part of the deal, TXU's prospective purchasers agreed to reduce the number new coal plant applications from eleven to three, and to reduce their C02 emissions to 1990 levels by 2020.
When asked how purchasers would meet the increased energy demand that the new coal plants were supposed to meet, Krupp said that they would go a long way toward meeting this demand by doubling its investment in wind power and doubling its investment in energy efficiency. Krupp said this "is becoming a new model, where utilities are understanding that they can make money by helping customers save energy."
For years, while people around the country (indeed, the world) have called for strong federal action on climate change, states including California and NJ have taken the lead and implemented a wide variety of laws and programs.
Ironically, as Congress finally begins debating what to do about global warming, there's a risk now that federal action could undermine some of these local actions, and a number of state and local officials went to Washington this week to help assure this wont happen.
Seattle Mayor Greg Nichols, NJ Governor John Corzine and others told a Senate Committee that the feds could help most by providing money for research and implementing broad guidelines for reducing greenhouse gas emissions. Nichols also said Congress should pass a plan "that calls for a hard and declining cap on emissions and allows for carbon trading among entities."
Local officials warned, however, that Congress should not pass legislation that would undercut aggressive state and local programs. This could happen because when Congress acts in a particular area, that law sometimes preempts any similar or conflicting state law. If Congress sets lower standards than exist in a state, for example, the federal standards might govern.
After years of largely ignoring the issue, Congress has been moving aggressively to draft global warming legislation, and Thursday's hearing was designed to examine local programs that might contribute to federal legislation. Twenty-nine states have already passed legislation limiting greenhouse gases, and 409 mayors have signed a climate-protection agreement. On Monday, the governors of Washington, California, Oregon, Arizona and New Mexico announced a regional agreement on climate change.
Story today in Christian Science Monitor provides nice list of recent climate change litigation.
The list includes a law suit commenced this month under the Endangered Species Act by Earthjustice and the Center for Biological Diversity and Pacific Environment claiming that the US Fish and Wildlife Service failed to consider global warming when drafting rules for oil and gas exploration in Alaska's Beaufort Sea. The suit cites studies showing that shrinking Arctic ice disrupts polar bear and walrus populations, that some bears are drowning because of melting ice shelves, and claims that these deaths are a taking under the Endangered Species Act.
Polar bears can suffer harm from activities such as drilling, seismic work and transportation which disturb feeding, cause abandonment of maternity dens and generally disrupt polar bear life cycles. According to the lawsuit, the US Fish and Wildlife Service didn't assess these impacts in the context of a warming Arctic, and failed to demand that appropriate protective measures be taken by those engaged in exploration.
For more information on this litigation, see the Earthjustice site.
Excellent news from Albany. New York Governor Spitzer's first budget includes a proposal to hire 12 climate experts as part of the Department of Environmental Conservation -- two economists, one climatologist and nine environmental program specialists. If approved by the legislature, New York would follow California to become only the second state to have a state-wide climate office. The employees would initially focus on implementing and expanding the Regional Greenhouse Gas Initiative, a seven-state initiative to reduce carbon-dioxide releases from power plants and other sources by 2009.
What kind of question is that? Isn't the public finally convinced that anthropogenic greenhouse gas emissions are causing global warming and coal is one of the biggest culprits? Unfortunately, the legal system has still not resolved this issue -- proving Dickens' point that the "law's an ass," and a particularly stubborn one at that.
One of our most venerable environmental statutes, the National Environmental Policy Act (NEPA), requires that the federal government assess and publicly disclose the environmental impact of its actions. If the impact might be significant, the government must investigate, respond to public comments and compare alternatives. Many states, and other countries, have similar laws.
U.S courts have been mixed on whether, and to what extent, greenhouse gas emissions must be considered in the assessment. (For some cases involving the question of whether NEPA applies to greenhouse gas emissions, see "Global Warming and the Courts" (PDF)(p. 11-14)). A court in Austrialia, however, recently ruled that the impact that large projects have on global warming -- such as the coal mine planned for Anvil Hill (viewed above) -- must be considered.
The decision involved the Anvil Hill open-cut coal mine -- the last significant area of bush land on the floor of the Hunter Valley north of Sydney, home many endangered species, including the koala and 14 varieties of birds. If approved, Anvil Hill will be another huge mine in Australia, already the world's largest coal exporter. (Like the U.S., Australia has failed to join Kyoto.)
A group of citizens challenged the mine, arguing that government had to consider both the direct consequences of the mining, as well as the "downstream" impacts -- particularly the burning of the coal, even though much of it would be burned overseas.
Although the judge refused to interfere with the approval process for the mine, she ruled that the downstream impacts must be considered. The decision may not stop the Anvil mine itself, but climate activists believe it will have significant consequence on future developments.
As Nikki Williams, Chief Executive of the New South Wales Minerals Council, stated, New South Wales has "300 thousand business owners and each one of those is going to be dramatically affected potentially, if this decision is taken to its logical conclusions because all of our activities, all of our business, produce greenhouse gases. So where do you draw the line? Is it just coal exports or are we going right down the chain to the building of your suburban home?"
We can only hope.
For more information, go to Anvil Hill Alliance, hear the Living On Earth podcast or watch the following video:
It's basic economics that the price of goods and services should reflect (or “internalize”) all the societal costs of those goods and services. Yet the price of many products -- including electricity, gasoline and other fossil fuels -- frequently does not include all costs, particularly those related to global warming. This is not suprising given that most of us had no idea that there was any external “cost” to greenhouse gas emissions until the late 80's.
One proposal often floated to “internalize” the costs of greenhouse gases is a carbon tax, but because of American’s great aversion to taxes, the proposal is usually discarded even before it is considered. Now comes the Carbon Tax Center -- a much needed forum for discussion about carbon taxes.
In addition to providing reports and information about a carbon tax, the Center will “provide intellectual and practical support, as well as a sense of community, to help carbon tax proponents . . . across the political spectrum coalesce into an irresistible civic force."
The Center is founded by Dan Rosenblum and Charles Komanoff, who bring a combined six decades of experience in economics, law, public policy and social change. It includes a blog, a monthly newsletter (titled "An Inconvenient Tax"), and compares a carbon tax with cap-and-trade solutions. They also provide an excellent slideshow concerning the carbon tax:
Jared Diamond, author of "Collapse: How Societies Choose to Fail or Succeed," recently stated that he is cautiously optimistic about the state of the world, because: 1) big businesses sometimes conclude that what is good for the long-term future of humanity is also good for their bottom line; and 2) voters in democracies sometimes make good choices. (For other reasons big thinkers are optimistic, see Edge's survey here.)
Jared's first reason was given huge support by the announcement (see NY Times story here) that ten major companies with operations across the economy — utilities, manufacturing, petroleum, chemicals and financial services — joined leading environmental groups to call for a firm nationwide limit on carbon dioxide emissions. Their call would lead to reductions of 10 to 30 percent over the next 15 years. Significantly, the companies included four utilites -- Duke Energy, PG&E of California, the FPL Group, and PNM Resources -- as well as BP, Lehman Brothers, G.E., Alcoa and Caterpillar.
