On September 20 the U.S. Environmental Protection Agency proposed a new source performance standard (NSPS) under the Clean Air Act that would limit emissions of greenhouse gases from new power plants. The proposal is a major part of the measures President Obama announced in his Climate Action Plan on June 25. Under the proposed NSPS new, large natural gas-fired turbines could emit no more than 1,000 pounds of CO2 per megawatt hour and coal-fired turbines no more than 1,100 pounds. This essentially would require any new coal-fired power plant to employ carbon capture and storage technologies that the utility industry argues have not yet been adequately demonstrated. Perhaps the best sound bite from the industry opponents was when one claimed that it was as if EPA was requiring power plants to use the iPhone9 when only the iPhone5 is currently available. The proposed regulations are now subject to public comment before EPA takes final action on them, likely sometime next year. EPA’s press release is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/da9640577ceacd9f85257beb006cb2b6!OpenDocument.
California won an important legal victory for its program to reduce state-wide greenhouse gas emissions. On September 18 the U.S. Court of Appeals for the Ninth Circuit upheld California’s low-carbon fuel standard. The 2-1 decision in Rocky Mountain Farmers Union v. Corey reversed a lower court that had held the standard invalid under the dormant commerce clause. The Ninth Circuit majority held that the standard did not facially discriminate against interstate commerce by calculating the carbon intensity of transportation fuels in a manner that accounts for the distance they travel from the point of production to the market. On October 10 I will be on a panel discussing this decision and others involving constitutional challenges to state renewable energy initiatives at the annual fall meeting of the ABA’s Section on Environment, Energy, and Resources in Baltimore.
On September 17 EPA released a 331-page report on “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” The report is a synthesis of all peer-reviewed science that exists on the connections between wetlands, streams, and downstream waters. EPA is soliciting public comment on the report, which EPA’s Scientific Advisory Board (SAB) is using to support a proposed new rulere defining “waters of the United States” for purposes of federal jurisdiction under the Clean Water Act. Since the Supreme Court’s decision in Rapanos v. U.S. in 2006 there has been massive confusion concerning the extent of federal jurisdiction. The report is available online at: http://yosemite.epa.gov/sab/sabproduct.nsf/46963ceebabd621905256cae0053d5c6/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf.
Governments in developing countries in Africa, including Niger, Chad and Gabon, have started to renegotiate the terms of contracts they previously signed with Chinese oil companies. The governments believe that the terms of the contracts are unfair because they do not adequately compensate the countries for their oil wealth and the environmental damage oil extraction may cause. Adam Nossiter, China Finds Resistance to Oil Deals in Africa, N.Y. Times, Sept. 17, 2013.
In the runup to today’s election in Germany some German companies are seeking to put the brakes on the country’s transition away from nuclear power and toward renewable energy sources. The companies argue that the government policy has sharply raised rates for electricity, making German companies less competitive in international markets. Andrea Thomas & Jan Hromadeo, Industry Fires Warning Shot on Energy, Wall St. J., Sept. 21-22, 2013, at A8.
Last week the Permanent Court for Arbitration in the Hague issued an interim judgment on Chevron’s claim that Ecuador is violating the U.S./Ecuador Bilateral Investment Treaty because its courts have held Chevron liable for oil pollution there. Chevron filed the international arbitration proceeding in September 2009 while an action against it was pending in an Ecuadoran court that in February 2011 rendered what is now a $19 billion judgment against Chevron. The three arbitrators ruled unanimously that a 1995 settlement agreement between Ecuador and Chevron addressing the oil pollution was intended also to bar any “diffuse” or “collective” claims filed to enforce the right to a clean environment in Article 19-2 of the Constitution of Ecuador. A copy of the arbitrators’ interim judgment is available online at Chevron’s “Amazon Post” website at: http://www.theamazonpost.com/wp-content/uploads/chevron-ecuador-bit-tribunal.pdf. Chevron is asking the arbitrators to direct Ecuador to oppose enforcement of the judgment in any court and to take steps to nullify it in Ecuador. The 48 private plaintiffs who secured the judgment are not parties to the arbitration.
On Thursday the U.S. Court of Appeals for the Second Circuit will hear the next phase of the litigation brought by Chevron accusing the Ecuadoran plaintiffs and their lawyers of fraud. The court will here oral argument on the Ecuadoran plaintiffs’ efforts to force the removal of Judge Lewis A. Kaplan, the federal district judge presiding over Chevron’s RICO suit against them. Chevron has hired former Solicitor General Ted Olson and former Attorney General Michael Mukasey as part of its legal team opposing Judge Kaplan’s removal. Judge Kaplan previously issued an injunction purporting to bar the plaintiffs from seeking enforcement of the judgment anywhere in the world, but the Second Circuit dissolved the injunction, holding that it exceeded the judges authority.
Arctic sea ice has bounced back in 2013 from the record low levels it reached in 2012. In 2012 only 24% of the Arctic Ocean was covered by sea ice at the end of the summer. This year 36% of the Arctic was covered with ice at the end of the summer, a 50% increase. Scientists do not believe that this represents a deviation from the pattern of declining sea ice because “a new low in summer sea ice has been set every few years, followed by a few years of recovery, followed by yet another low that typically exceeds the previous one by a substantial margin.” Justin Gillis, Arctic Ice Makes Comeback From Record Low, but Long-Term Decline May Continue, N.Y. Times, Sept. 21, 2013, at A7. Melting of sea ice does not affect global sea levels since the ice already is in the water, but it is viewed as an important indicator of what may happen to the Greenland icecap, which could have a huge impact on sea level rise if it melts because it is located over land.
Protestors from Greenpeace attempted last week to board a Russian offshore oil drilling platform in the Arctic’s Pechora Sea. They and their vessel were seized by Russian authorities. Steven Lee Myers, Russia Seizes Greenpeace Ship and Crew for Investigation, N.Y. Times, Sept. 21, 2013, at A7.
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