Last week, Mexico’s Senate passed a rather ambitious climate change law. And it did so with a 78 to 0 vote – something not seen too often in our country! This makes our neighbors to the south only the second nation in the world (the United Kingdom is the other) and the first developing country, to pass such legislation.
Just as we did last year at this time, we are pleased to bring you the results of the 17th annual U.S. Greenhouse Gas Inventory Report published by the Environmental Protection Agency (EPA). And… drum roll please… we here at GREENberg bLAWg (along with pretty much everyone else that reported on the topic) correctly predicted that along with economic recovery (which we seem to be inching toward) would come an increase in overall greenhouse gas (GHG) emissions from the previously reported year – a 3.2% increase from 2009 to 2010, to be exact.
The time has finally come… California’s cap-and-trade regulation finally went into effect in January of 2012 (not without its litigation drama along the way – see here, here, here, here, and here for the full saga). The crowning jewel of California’s AB 32, the regulation establishes an overall cap on greenhouse gas (GHG) emissions for all covered sources. There are two “compliance instruments” contemplated as a part of the cap-and-trade regulation. In other words, there are two different items that a covered facility may obtain to allow them to emit GHGs: (i) allowances, which are a particular facility’s tradable portion of the total GHGs permitted to be emitted under the overall cap, and (ii) offsets, which are projects that will reduce emissions outside of the cap. This article will focus on the regulation’s offset program which is run by the California Air Resources Board (ARB).
Earlier this month, the United States Environmental Protection Agency (EPA) released for the first time comprehensive greenhouse gas (GHG) data through EPA’s GHG Reporting Program. The 2010 GHG data includes publicly accessible information from sources in nine industry groups that directly emit large quantities of GHGs or supply certain fossil fuels.
The GHG Reporting Program came as result of EPA’s October 2009 issuance of the Mandatory Reporting of GHG Rule (74 FR 56260). The rule requires certain large sources and suppliers of products that would emit GHGs if released or combusted to report their GHG data and other relevant information starting in 2010. EPA’s online data publication tool allows the public to review the GHG data in multiple ways including by facility, industry, location or gas.
As our readers know, we have been following the cap-and-trade regulations both domestically and abroad. Quebec recently joined California in adopting a cap-and-trade regulation for greenhouse gas (GHG) emission allowances based on the rules established by the Western Climate Initiative (WCI). WCI is a collaboration of independent jurisdictions, including California, working together to “identify, evaluate and implement emissions trading policies to tackle climate change at a regional level.” Quebec joined WCI in April 2008.
On Tuesday, San Francisco Superior Court Judge Ernest H. Goldsmith, issued an order that removes one more obstacle from the California Air Resources Board’s (CARB) efforts to implement its plan to reduce greenhouse gas emissions through an unprecedented cap-and-trade program adopted by the agency in October and slated for enforcement in 2013. The court’s order discharging a peremptory writ of mandate issued by the court in May, indicates that CARB has complied with the Court’s previous order by adequately considering alternatives to its market-based cap-and-trade program, ending a year-long legal saga that threatened to derail the state’s plan to implement its landmark greenhouse gas reduction law, the Global Warming Solutions Act of 2006 (AB 32).
In a letter to the Department of Justice late last week, California and 10 other states, the cites of New York and D.C., as well as the Sierra Club and the Natural Resources Defense Council agreed to give the Environmental Protection Agency (EPA) an extension until November 30th of this year to create regulations limiting the emission of greenhouse gases (GHGs) by power plants before pursuing legal action to enforce a December 2010 settlement.
This all began back in 2006 when these petitioners sued EPA under the Clean Air Act (CAA) upon passage of a final rule regulating utility emissions without limiting GHGs. The petitioners’ position was given teeth following the Supreme Court’s ruling in Massachusetts v. EPA, in which the court held that carbon dioxide falls within the definition of a pollutant under the CAA. The 2010 settlement required that EPA create the rules by July of 2011. This deadline was extended to the end of September of this year and was then further extended to the end of October. The petitioners stated that they are willing to agree to this third extension “in light of progress made to date.” The extension talks are confidential (since they are really settlement modification discussions), however, various news outlets are reporting that the discussions are centered more around the schedule for rule-making rather than the meat of the rules.
Last week, the California Air Resources Board (CARB), in an unanimous vote, adopted the final regulation for its controversial cap-and-trade program, which serves as the centerpiece of the state’s landmark greenhouse gas reduction law, the Global Warming Solutions Act of 2006, Assembly Bill AB 32 (AB 32).The program, which has had to overcome hurdles in both the court room and on the ballot during a multi-year development process, will cover some 600 facilities that emit 85% of the state’s greenhouse gas emissions.The program is being rolled out in phases with the first compliance phase beginning in 2013, covering all major industrial sources along with electric utilities. The second compliance phase, beginning in 2015, will include distributors of transportation fuels, natural gas and other fuels.
Earlier this month, the lower house of Australia’s parliament (think House of Representatives) passed a series of bills, including the Clean Energy Bill 2011, by a vote of 74 to 72. The bill is known as the “carbon tax.” Starting in July of 2012, approximately 500 of the biggest emitters in the country will be required to pay A$23 (approximately $23 USD) per metric ton of carbon emissions they produce. Then in 2015, a market based trading system will take over.
Australia is the biggest exporter of coal in the world and approximately 80% of its electricity is generated by coal. It is one of the biggest per capita greenhouse gas emitting countries in the world. The bill’s goals include a 5% reduction in carbon emissions from the levels in 2000 by 2020 and an 80% reduction by the year 2050.
Stating that it was “time for big thinking and big projects that put Californians back to work,” Governor Jerry Brown recently signed into law two bills, AB 900 and SB 292, aimed at streamlining the judicial review process for large-scale development projects. Introduced in the final days of the legislative session, AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act of 2011, amends the state’s landmark environmental protection law, the California Environmental Quality Act (“CEQA”), to allow litigants to bypass superior court trials and have environmental legal challenges to certain “environmental leadership projects” heard directly by the Court of Appeal under a shortened decision-making time frame.
Sedina L. Banks
Editor
