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Showing 29 posts by Brook J. Detterman.

Carbon Markets Roundup: Recent Developments in U.S. and International Carbon Pricing Regimes

Q2 was a busy one for carbon markets.  On the international front, talks to develop the Paris Rulebook advanced, but progress was slower than hoped.  Ontario announced withdrawal from the Western Climate Initiative, while Canada’s federal government advanced plans for a nationwide price on carbon, setting up a potential showdown.  Mexico also took steps to further its carbon market.  Numerous U.S. states are considering additional carbon pricing programs in the wake of federal inaction, while a few under-the-radar developments could impact both federal and state climate policies. Read More ›

Major Offshore Wind Projects Advance in Massachusetts and Rhode Island

Commercial-scale offshore wind power may soon become a reality in New England. On May 23, Massachusetts electric distribution companies selected Vineyard Wind, a subsidiary of Avangrid Renewables, LLC, as the preferred provider of 800 megawatts (MW) of offshore wind generation to the Massachusetts power market, and Rhode Island selected Deepwater Wind as the preferred provider of 400 MW of offshore wind generation to the Rhode Island power market. Both companies propose to generate the electricity from wind projects they intend to construct on federal leases on the Outer Continental Shelf offshore of Massachusetts and Rhode Island. Read More ›

CARB’s Use of Little-Known Enforcement Tool Should be of Paramount Concern for LCFS Participants

The Low Carbon Fuel Standard (“LCFS”) Regulation has been embroiled in controversy since its inception.  Despite the California Air Resources Board’s (“CARB’s”) continuing difficulty following California Environmental Quality Act mandates relating to the LCFS, CARB has maintained diligent enforcement of LCFS requirements.  Through these enforcement efforts, CARB has revealed its intent to use California Health & Safety Code section 43027, a provision that contains high civil penalties for “willful or intentional” violations of the LCFS (up to $250,000 per day), as well as $50,000 per day for negligent violations and strict liability for all other violations, with penalties of $35,000 per day.  Read More ›

Water, Water, Everywhere

If it isn’t already, water should be on your mind this year.  The excitement of Scituate storm surge and coastal flooding aside, the region – and the U.S. as a whole – is facing a slew of legal developments that may change how citizens, businesses, and governments operate under the federal Clean Water Act and similar state programs.  In particular, the scope of Clean Water Act jurisdiction is in play following a pair of Supreme Court decisions, as is the potential delegation of permitting authority to Massachusetts and New Hampshire, two of only four states in which the EPA administers permitting under the National Pollutant Discharge Elimination System (NPDES). Read More ›

EPA Continues Reforms to NSR and Other Clean Air Act Permitting Programs

On March 13, 2018, the U.S. Environmental Protection Agency (“EPA”) released a guidance memorandum[1]  announcing a new policy designed to clarify when a proposed project will trigger New Source Review (“NSR”) under the Clean Air Act.  Under the policy, facilities may now take into account emissions decreases in calculating whether a proposed project will trigger NSR in the first instance.  This key change provides facilities with greater flexibility in assessing whether a pre-construction permit is required for major projects.  In the past, EPA has not allowed such emissions netting during the “Step 1” analysis under the NSR program.  This policy shift marks the latest in a series of reforms to Clean Air Act permitting programs.  Such reforms also include a deferential EPA position on the use of “projected actual” calculations, and the retraction of EPA’s “once-in-always-in” policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act.  These changes are discussed below, followed by a list of key takeaways. Read More ›

Carbon Pricing Roundup: Recent Developments in the US and Abroad

The first quarter of 2018 has been a busy one for efforts to put a price on greenhouse gas (GHG) emissions, both in the United States and abroad.  In February, the European Union (EU) approved reforms to the EU Emissions Trading System (EU ETS) in late February, while Ontario joined the Western Climate Initiative (WCI), holding the first joint allowance auction with California and Quebec.  Oregon and Washington failed to advance new carbon pricing proposals, while RGGI is set to expand.          Read More ›

Industry Wins First Round in California Climate Change Litigation

Yesterday, a California federal district court dealt a serious blow to two California cities’ climate change lawsuits against several major oil and gas companies.  Judge William Alsup issued an order denying the plaintiffs’ motion to remand these high-profile actions back to state court, finding that “plaintiffs’ claims, if any, are governed by federal common law. Federal jurisdiction is therefore proper.”[1]  If the court’s order is sustained on a likely appeal to the 9th Circuit and the cases remain in federal court, plaintiffs’ novel climate change challenge will face a steep uphill battle. Read More ›

How The Climate Changed For Renewables In 2017

This article was originally published on January 22, 2018, by Portfolio Media Inc. as a Law360 Expert Analysis, and is available here (subscription required).

When it came to renewable energy, 2017 ended much as it began: with much uncertainty, and movement by the Trump administration to repeal, or at least significantly modify, the Clean Power Plan.

But 2017 also had its bright spots for renewables.  Several states advanced key renewable energy objectives and, despite earlier threats, Congress did not repeal the production tax credit for wind energy or the investment tax credit that is highly valuable to solar developers. Here’s a breakdown of some of the big headlines from 2017. Read More ›

The Science and Controversy of Offshore Wind: BOEM Embarks on New Research Efforts While Fishing Groups Take Aim at An Offshore Wind Lease In New York

The U.S. Bureau of Ocean Energy Management (BOEM) is embarking on several studies to better understand offshore resources and species.  At the same time, fishing interests have sued BOEM to block an offshore wind lease, challenging not only the lease itself but the process that BOEM uses to award leases and conduct its environmental analysis under the National Environmental Policy Act (NEPA).    Read More ›

Will Massachusetts Enact a Carbon Tax?

Massachusetts could be the first state in the U.S. to enact an economy-wide carbon tax.  In January 2017, two bills were proposed in the Massachusetts legislature that would establish a tax on fossil fuels in Massachusetts with the goal of reducing greenhouse gas (GHG) emissions while returning most or all of the proceeds to consumers and businesses.  These bills have picked up some momentum, and with more than 80 legislators co-sponsoring the bills (about 40% of the Massachusetts legislature), there’s a real chance that a carbon tax could become law in Massachusetts. Read More ›