The U.S. Environmental Protection Agency’s long-awaited Clean Power Plan to control emissions of greenhouse gases (GHGs) from existing power plants will be issued in final form on Monday August 3. Since EPA proposed the regulations in June 2014 it has received more comments on them that it has ever received on any proposed regulations in the agency’s 45-year history. The final regulations include some significant changes from the agency’s initial proposal, indicating that EPA listened carefully to the avalanche of comments it received. The regulations are being issued pursuant to §111(d) of the Clean Air Act, which allows the agency to require states to regulate a pollutant for which it has established a new source performance standard if it is not already regulated as a criteria air pollutant with a national ambient air quality standard (NAAQS) or as a hazardous air pollutant subject to a national emissions standard for hazardous air pollutants (NESHAP). EPA is setting emissions targets for states that in the aggregate will reduce GHG emissions by 32 percent from 2005 levels by 2030.
The agency has removed from the target-setting process the fourth of its four proposed “building blocks” - demand-side energy efficiency improvements. This should eliminate some of the most vociferous legal objections to the regulations that contended that the agency had no authority to include this in the regulations. EPA also increased the flexibility afforded states, placing more emphasis on regional, rather than individual state, calculations of emissions rates. It also has delayed for two years from 2020 to 2022 the initial start date for compliance by power plants, which will make it more difficult for companies to argue that they face irreparable harm if the regulations are not stayed. Initial state plans will be due in September 2016, but states that provided a reasonable explanation for needing more time can obtain extensions to September 2018. At the same time EPA is keeping incentives for early action by states to reduce emissions by investing in renewable energy sources. Although Senate majority leader Mitch McConnell has been urging states to “just say no” to EPA, the Washington Post reports that most states, including McConnell’s home state of Kentucky, are planning to comply with the regulations. Joby Warrick, Outrage Over EPA Emissions Regulations Fades as States Find Fixes, Washington Post, July 23, 2015. EPA’s regulations include a Federal Implementation Plan (FIP) for states that refuse to submit their own plans, but it is eschewing use of the sanctions provided under the Clean Air Act for states that fail to comply, such as the withholding of federal transportation funds. Thus, it will be very hard for opponents to argue that the regulations trample federalism concerns.
There will be fierce rhetoric attacking EPA’s regulations, as now routinely occurs whenever the agency adopts national regulations. Republican presidential candidate Marco Rubio, who two years ago said that EPA was “carpet bombing” the economy, was already on TV today arguing that the rules would be “catastrophic” for single moms. But, revealingly, he revisited the former talking point that China is doing nothing to control its emissions, which now could not be more false. There also will be a multiplicity of legal challenges to the rules. Industry groups were so eager to challenge them that they sued EPA last year before the rules were even issued. The industry lawsuits were tossed out of court last year as being premature. With the changes EPA made between its proposed and final rule, the agency is on even firmer legal footing, despite what its critics will say.
On July 30 officials from Maryland and Virginia announced that for the second year in a row Chesapeake Bay sea grasses rebounded significantly. A survey conducted by the Virginia Institute of Marine Sciences found that Chesapeake sea grasses covered 27% more of the Bay bottom in 2014 than in 2013. The survey found that underwater grasses covered 75,835 acres of the Bay, an increase from 59,711 acres in 2013. The Bay-wide restoration goal is 185,000 acres.
Major multinational oil companies reported last week that their earnings had fallen to the lowest levels in a decade, due to the low price of crude oil. Several companies also announced layoffs and sharp cuts to their capital spending, reflecting a conclusion that lower oil prices are here to stay for an extended period. ExxonMobil reported a 49% decline in profit, which sent its stock tumbling. Chevron’s stock also plunged after the company reported that its profit dropped 89%. Crude oil prices are hovering just above $50/barrel, less than half the level that prevailed last year. This makes it all the more puzzling why Royal Dutch Shell is continuing to pursue drilling in the Arctic where it will not be profitable without oil prices above $75/barrel.
On Tuesday July 28 I gave a “Hot Topics” lecture at Vermont Law School on “Environmental Law in the ‘Last Place on Earth’.” The lecture compared the unique legal regime that protects the environment in Antarctica with the situation in the Arctic, where a rush is on to development. I noted the New York Times story that appeared last week (Ian Urbina, A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes, N.Y. Times, July 28, 2015) that reported how the private group Sea Shepherd hunted a vessel caught illegally fishing in Antarctica for 110 days before it was scuttled by the Spanish criminal syndicate that owned it. This represents another example of emerging action by NGOs to assist with the enforcement of environmental law, a significant element in the growth of global environmental law.
On July 30 Professor Zhao Huiyu of Shanghai Jiatong University’s KoGuan School of Law gave a “Hot Topics” lecture at Vermont Law School on China’s new public interest litigation law. She presented some fascinating new data on how the law is operating as Chinese courts accept public interest cases that they previously would have refused. Professor Zhao and I left Vermont to drive to Boston after the final class of our Comparative U.S./China Environmental Law course on Thursday afternoon. Even though her flight from Boston back to Shanghai was not until very early Friday morning, it left before mine. I had a flight back to D.C. on the 9pm Thursday U.S. Air shuttle. The flight left more than 3 hours late after midnight, flew half way to D.C., and then was ordered to return to Boston because Reagan National Airport had closed. I spent the night on a bench at Logan Airport because the hotels were all full and then returned to D.C. on the 8AM shuttle on Friday morning. On Tuesday I will fly to Shanghai to complete my service for the year as a high level visiting foreign expert.
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