Return to U.S., Chesapeake Bay Settlement, Kerry-Lieberman Climate Bill & EPA GHG Regulations (by Bob Percival)

On Monday May 10 I returned to the U.S. from the Middle East. I flew from Tel Aviv to Frankfurt and then from Frankfurt to Washington. The flight from Frankfurt to Washington took two hours longer than usual because the plane had to fly much further north than normal to avoid a cloud of ash from the Eyjafjallajokull volcano in Iceland.

On Tuesday May 11 the Chesapeake Bay Foundation announced that it had reached a settlement of its lawsuit against the U.S. Environmental Protection Agency (EPA) that sought to force more aggressive action to clean up the Chesapeake Bay. In the settlement EPA promises to require more stringent limits on pollution flowing into the Bay and to adopt more specific goals and timetables for achieving pollution reductions. The settlement was greeted with skepticism in some quarters because there have been so many previous promises of future action to clean up the bay during the last several decades. A summary of the settlement is available at: http://www.cbf.org/Page.aspx?pid=1547. EPA is promising to adopt new controls on pollution from agriculture by Dec. 15, 2014, but these are likely to face stiff local opposition as illustrated by the backlash spawned against the Maryland clinic when it sued to enforce existing regulations (see March 28 & April 5 blog posts).

On Wednesday May 12 Senators John Kerry (D-Mass.) and Joseph Lieberman (I-Conn.) unveiled the “American Power Act,” their long-awaited bill to control emissions of greenhouse gases (GHGs). The legislation seeks to reduce GHG emissions by 17% from 2005 levels by 2020 and by 83% by 2050, the same targets as in the legislation that passed the House last June. The bill would create separate regulations for the transportation, utility and manufacturing sectors. In response to the ongoing massive oil spill in the Gulf of Mexico, the legislation would let coastal states ban offshore drilling within 75 miles of shore. In an effort to attract Republican support, the bill would expand federal loan guarantees for new nuclear powerplants. It also would authorize the imposition of tariffs on goods from countries that do not adopt similar restrictions on GHG emissions. Despite endorsements from an impressive array of industry groups, the bill faces long political odds in the face of a likely Republican filibuster in the Senate, especially after Senator Lindsay Graham withdrew his support for the bill (see April 25 blog post). A copy of the bill, which is 987 pages long, is available online at: http://kerry.senate.gov/americanpoweract/pdf/APAbill.pdf. Summaries of the bill are available at: http://kerry.senate.gov/americanpoweract/intro.cfm.

On Thursday May 13, EPA Administrator Lisa Jackson announced that EPA had adopted a final rule regulating emissions of GHGs from the largest stationary sources under the Clean Air Act (CAA). Beginning in January 2011, sources seeking CAA permits that increase their emissions of GHGs by 75,000 tons per year will be covered by the regulations. Beginning in July 2011 all new facilities that emit 100,000 tons per year of GHGs also will be covered. EPA estimates that facilities responsible for 70% of GHG emissions from stationary sources will be covered by the rule. A copy of the final rule is available online at: http://www.epa.gov/nsr/documents/20100413final.pdf. A fact sheet describing the rule is available at: http://www.epa.gov/nsr/documents/20100413fs.pdf. It is anticipated that EPA regulation of GHG emissions under the CAA will increase pressure on Congress to adopt legislation to supplant these regulations with a more comprehensive, national control scheme.

This week I agreed to teach a two-week course in Comparative Environmental Law as part of Vermont Law School’s summer program. The class will be held during the last week in July and the first week in August. I will be replacing my Global Environmental Law co-author Tseming Yang who will be taking a leave of absence from Vermont Law School on June 1 to join EPA where he will work on international issues for EPA General Counsel Scott Fulton.

Next Sunday I will be flying to China to participate in two conferences - one on China’s new tort law sponsored by the Natural Resources Defense Council’s Beijing office and another on climate change at Renmin University. Before I leave I plan to finish grading the 26 papers that students wrote in my Global Environmental Law seminar. The papers cover a very wide range of topics, including how Phnom Penh, Cambodia cleaned up its drinking water, regulation of space-based solar energy generation, and comparisons of how different countries protect endangered species, regulate water pollution, and toxic substances such as mercury, lead, asbestos, and coal slurry waste.