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Showing 94 posts in Air. View our practice description for Air.

DOT and EPA Release Proposal to Roll Back Obama-era Emissions Standards for Automobiles

On August 2, 2018, the Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) and the Environmental Protection Agency (“EPA”) issued two related, proposed rulemakings, which together comprise the Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule.  The proposed rule, if adopted, would curb NHTSA’s Corporate Average Fuel Economy (“CAFE”) standards and EPA’s tailpipe carbon dioxide (CO2) emissions standards for passenger cars and light trucks for model years (“MY”) 2021 through 2026 that were issued in 2012.  The proposal also asserts that the Energy Policy and Conservation Act of 1975 (“EPCA”), which requires NHTSA to set national fuel economy standards for new motor vehicles, preempts any state, including California, from imposing or enforcing its own vehicle fuel economy standard.  Read More ›

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 ›

Full Steam Ahead: EPA Moves Forward with Key Initiative to Reduce Emissions at U.S. Ports

EPA’s Office of Transportation Air Quality recently issued a report titled “EPA and Port Everglades Partnership: Emission Inventories and Reduction Strategies” (“the Port Everglades Report”).[1] The Port Everglades Report comes in the wake of EPA’s 2016 “National Port Strategy Assessment: Reducing Air Pollution and Greenhouse Gases at U.S. Ports.”[2] Both the Port Everglades Report and the National Port Strategy Assessment are part of EPA’s “Ports Initiative,”[3] which seeks to establish a framework for stakeholders to evaluate and implement air pollution emission-reduction initiatives at ports. Read More ›

EPA Proposes to Rescind RMP Provisions Amended Under Obama Administration, Seeks Comments

On May 30, 2018, the U.S. Environmental Protection Agency (EPA) published a proposed rule (Proposed Rule) that would rescind the majority of the amendments to the RMP rule that were finalized in January 2017 in the final days of the Obama Administration (RMP Amendments Rule).  Comments on the Proposed Rule are due on or before July 30, 2018. 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 ›

SCOTX: Missed 30-Day Service Deadline Does Not Mandate Dismissal of Challenge to TCEQ Action

Last week, the Supreme Court of Texas ruled that serving citation on the Texas Commission on Environmental Quality (“TCEQ”) outside a 30-day deadline set forth in the Texas Clean Air Act (“TCAA”) did not require dismissal of the plaintiff’s lawsuit.[1] The court’s ruling may provide some relief for plaintiffs who do not strictly comply with the TCAA’s service requirements. However, the remedy for non-compliance with other TCEQ statutes’ service deadlines may be less forgiving, and practitioners should endeavor to meet all service requirements as a best practice when challenging TCEQ decisions. Read More ›

Judge Becomes Student in Climate Change Lawsuit “Tutorial”; Other Recent Updates

The novel climate change tort cases are accelerating at a rapid pace.  Over the past two weeks, several important events occurred in the lawsuits brought by multiple California cities and counties against the country’s largest energy companies:

  • At the invitation of U.S. District Judge William Alsup, plaintiffs Oakland and San Francisco and defendant energy companies participated in an unusual “global warming and climate change tutorial.”
  • In the same case, the energy companies filed motions to dismiss the public nuisance climate change claims, arguing that the claims are displaced by the Clean Air Act and other federal statutes, or alternatively, founder on grounds such as the failure to state a viable public nuisance claim and violations of the Constitution’s separation of powers principles.
  • In another set of climate change cases in California brought by several other local governments against over thirty energy companies, U.S. District Judge Vince Chhabria created a district-level split on jurisdiction by remanding those claims back to state court.
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 ›

TCFD Report Will Shape Future Expectations for Climate-Related Financial Disclosures

On June 29, 2017, the Task Force on Climate-Related Financial Disclosures (TCFD or Task Force) released its Final Report providing recommendations on voluntary climate-related financial disclosures.  The recommendations, developed by an industry-led task force of both users and preparers of disclosures, are intended to support the production of more consistent and clear financial disclosure of climate-related risks across sectors for use by investors, lenders, and insurers.  Most G20 countries have existing legal frameworks that require the disclosure of material risks in financial reports.  Beyond legal mandates, investors are increasingly focused on environmental, social, and governance (ESG) factors in evaluating potential investments and future business risk.  While the Task Force’s recommendations are voluntary and independent of the environmental sustainability disclosure standards currently under review in the U.S. by the Securities and Exchange Commission (SEC) (see Beveridge & Diamond alert on the SEC concept release), the recommendations will impact the approach many publicly traded companies take to data collection and climate risk reporting over the long-term. Read More ›