As we previously reported, in December of last year, EPA determined that climate change caused by emissions from greenhouse gases endangered the public welfare and the environment. These so-called “endangerment findings,” while not directly imposing requirements on industry or other entities, paved the way for future EPA action to address climate change. In response to EPA’s endangerment findings, 10 petitions were filed urging EPA to reconsider its findings under the Clean Air Act. The parties argued, among other things, that the climate science could not be trusted, questioning the findings of the Intergovernmental Panel on Climate Change (IPCC), the U.S. National Academy of Sciences, and the U.S. Global Change Research Program. After months of consideration, in an over 200-page response, EPA denied the petitions, finding that the science to support EPA’s endangerment findings is “robust, voluminous and compelling.” Further legal challenge is most certainly to follow.
After much thrashing about and hesitancy to act by air quality regulators throughout California and the nation, on June 2, 2010, the Bay Area Air Quality Management District (BAAQMD), which has jurisdiction over the nine counties of the San Francisco Bay area, became the first air quality regulator to adopt guidelines for numerical thresholds of significance for greenhouse gas (GHG) emissionsfor development projects of all types.The BAAQMD action creates
quantifiable GHG thresholds to determine levels of significance in a GHG emissions analysis. A threshold of significance is an identifiable quantitative, qualitative or performance level of an air quality effect used to determine the environmental impacts from a project. This action will lead the way for other regulators in California to control GHG emissions indirectly through the environmental review portion of the project approval process under the California Environmental Quality Act or CEQA.
Senate Majority Leader Harry Reid (D-NV) announced that the scaled-down energy bill he intends to introduce before the August recess will not include either a cap and trade provision or a renewable energy portfolio requirement. Acknowledging that he could not command 60 votes for even a utility-only cap and trade program, Reid will push for more limited energy legislation covering a response to the Gulf oil spill, energy-efficiency retrofit programs, incentives for the production and purchase of natural gas vehicles, and additional appropriations for the Land and Water Conversation Fund.
The events relating to the BP oil spill in the Gulf of Mexico continue metaphorically to parallel the relationship between the courts and environmental review under the National Environmental Policy Act (NEPA) with regard to deep water oil drilling off the north coast of Alaska. Shortly after BP installed a temporary cap on its blown-out well beneath the Gulf of Mexico and began a days long pressure test of the integrity of the well, the U.S. District Court in Alaska issued an order having a similar effect on oil drilling planned by Shell Oil in the ocean off Alaska’s coast. On July 21, 2010, U.S. District Judge Ralph R. Beistline, issued an order determining that the Minerals Management Service (MMS) (recently renamed Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE)) of the U.S. Department of the Interior had failed adequately to consider certain issues in its Final Environmental Impact Statement (FEIS) prepared under NEPA for the sale of an oil and gas lease in the Chukchi Sea off the coast of Alaska.
One of a Few Law Firms Earning Distinction
For the third year in a row, the Climate Action Reserve, and its affiliated California Climate Action Registry, has awarded Greenberg Glusker the recognition of “Climate Action Leader.” The leadership status, the standard used in the state’s public reporting of greenhouse gas (GHG) emissions, shores up the Firm’s long-term commitment to sustainability best practices and environmental responsibility. Greenberg Glusker is one of only a handful of law firms in California to be named a Climate Action Leader by the Registry.
Although Senate Majority Leader Harry Reid (D-NV) plans to introduce energy legislation by the end of July, it is uncertain if, and to what extent, the bill will include a cap and trade provision. Reid continues to state that he will bring a four-part energy and climate package to the Senate floor in the next two weeks, but prospects for any cap and trade component have seemingly dimmed among the most vocal supporters. Reid has expressed his preference for a bill containing four key elements: a response to the Gulf of Mexico oil spill, promotion of energy efficiency, stimulus for clean energy production, and a cap on carbon emissions from power plants. However, Reid has warned he will not include any provisions that are not certain to gain 60 votes.
California yesterday commenced a lawsuit seeking to prevent the Federal Housing Finance Agency and its arms Fannie Mae and Freddie Mac from interfering with California’s implementation of the PACE (Property Assessed Clean Energy) program for financing the greening of existing structures. The lawsuit is intended to prevent implementation of recently announced policies that could significantly deter future use of the PACE program and delay or prevent clean energy retrofits of existing residential and commercial buildings. That interference could also cost California clean energy businesses income and jobs.
The PACE program, which has been encouraged by the federal Department of Energy, allows property owners to finance energy efficiency or renewable energy improvements to their property by long term borrowing on publicly issued low interest bonds that are repaid on their property tax bills. The program is designed to remove high upfront costs of green improvements as a primary reason for property owners foregoing retrofits that are, in the long run, financially sound for the operation of their property and good for the environment.
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For companies, investors, executives and service providers looking to make their mark in the cleantech and sustainable energy arena, there is a new website, www.skipso.com which serves to connect fellow green-minded thinkers in the same way that LinkedIn has connected millions of users since its launch in 2003.
What’s Coming Down the River – How EPA’s Designation of the Los Angeles River as a “Navigable Waterway” May Impact Future Development
As reported by the Los Angeles Times, the U.S. Environmental Protection Agency (EPA) designated the entire 51-mile, concrete lined Los Angeles River a “traditional navigable water,” under the Clean Water Act on Wednesday. Although it may be hard to picture the Los Angeles River as a navigable waterway on par with the mighty Mississippi, EPA made the designation based “on a myriad of factors including the river’s current and historical navigation by water craft, current commercial and recreation uses, and established local plans for restoration of the river.” The designation clarifies the Los Angeles River’s legal status
under the Clean Water Act and strengthens the protection to the small streams and wetlands that make up the 834-square mile Los Angeles River watershed. It also helps ensure the health and safety of those who use the river. While many Angelenos have reason to applaud this designation, it may make it more costly and difficult to develop along the river because developers will have to comply with the Clean Water Act.
Deadline Approaches for Disclosure of Energy Efficiency Rating of Commercial Buildings
One of the ongoing challenges in making the case for “green building” has been to monetize the value of high-efficiency features, such as reduced energy consumption. In a “light-bulb” moment, the California Legislature enacted Assembly Bill 1103 (“AB 1103”) in its 2007 legislative session as a means to assure that a building’s energy efficiency is a factor in certain sale, lease and loan transactions. Specifically, AB 1103 requires disclosure of energy-usage data of commercial buildings utilizing the U.S. Environmental Protection Agency’s Energy Star Portfolio Manager program (“EPA Portfolio Manager”). The thinking behind this new “statistic” is to quantify the benefits of energy-efficiency upgrades by providing a standardized metric for energy performance in the marketplace. With implementing regulations in process, the question is what will be required of building owners as the deadline for compliance approaches?