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Showing 63 posts in Climate Change. View our practice description for Climate Change.

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 ›

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 ›

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 ›

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 ›

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 ›

President Trump Announces Withdrawal from Paris Agreement on Climate Change

President Trump announced on Thursday his intention to initiate a formal withdrawal of the United States from the Paris Agreement, a global agreement designed to address climate change by reducing greenhouse gas (“GHG”) emissions. The President indicated that the United States would move forward with the pull-out and possibly attempt to re-negotiate the agreement in order to get “terms that are fair to the United States.”  President Trump frequently discussed pulling out of the Paris Agreement while on the campaign trail, citing concerns regarding its potential impact on the American economy, particularly the energy sector.    Read More ›

Virginia Begins Development of Cap-and-Trade Program for Electric Power Sector

On May 16, 2017, Virginia’s Governor Terry McAuliffe signed Executive Directive 11 (the “Directive”), which directs Virginia’s Department of Environmental Quality (“DEQ”) to develop regulations to reduce greenhouse gas (“GHG”) emissions from the power sector.  Notably, the Directive requires DEQ to develop a program that is “trading-ready,” with market-based mechanisms capable of linking with other jurisdictions. Read More ›

Executive Order Charts New Path For Offshore Energy Development

On April 28, 2017, the Trump administration issued an Executive Order entitled “Implementing an America-First Offshore Energy Strategy.”  This EO calls for expanded oil and gas leasing in areas of the U.S. Outer Continental Shelf (OCS) that were recently placed off-limits to energy development, and instructs several federal agencies to reevaluate and possibly reverse recent regulations imposed on the offshore oil and gas industry.  If fully implemented, the EO would clear the way for expanded and expedited development of OCS energy resources.   Read More ›