NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

Report
The Climate Change Scene in
Washington
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PRESENTED BY
Peter Glaser
Troutman Sanders LLP
401 9th Street, NW
Suite 1000
Washington, DC 20004
202.274.2950
www.troutmansanders.com
Georgia Traditional Manufacturers Association
LaGrange, GA
November 5, 2009
CURRENT STATE OF PLAY
• Congress
• EPA
• Courts
• Copenhagen in
December
Waxman-Markey
• Passed House June 26, 2009, 219-212
vote – 8 Rs for, 44 Ds against
• First bill to pass either House that
mandates GHG Reductions
• 1427 pages (!)
• 300+ page Manager’s Amendment Filed at
3:00 A.M. the day of vote
• Floor debate limited to one afternoon
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Cap-and-Trade
• Cap-and-trade program for capped
sources, principally large industrial sources
emitting ≥ 25,000 tpy CO2e and accounting
for 85% of U.S. GHG emissions.
• Targets and Timetables
- 3% below 2005 when program starts in
2012
- 17% below by 2020
- 42% below by 2030
- 83% below by 2050
Source: Climate Policy Group
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The Senate
6 Committees have jurisdiction over bill,
leading committee is Boxer’s EPW, but
Kerry (Foreign Relations), Baucus
(Finance), and Lincoln (new Chair of Ag)
expected to play strong roles.
Majority Leader Reid has essentially
thrown in towel on getting bill this year
Problem is Midwestern and coal state Ds
Kerry-Boxer
• Introduced 9/30 with key sections
blank
• Chairman’s Mark with key sections
filled at 11 PM Fri, 10/23 (900+
pages)
• Hearings week of 10/26
• Mark-up this week?
Kerry-Boxer v. Waxman-Markey
• Similar on cap-and-trade
• Kerry-Boxer more aggressive 2020 target:
20% reduction vs. 17% reduction
• Kerry-Boxer more liberal on offsets
(maybe)
• Kerry-Boxer does not provide same trade
protections
• Waxman-Markey has energy provisions
that Kerry-Boxer does not include because
of lack of jurisdiction
Key Political Considerations
• Northeast/West Coast vs. Heartland
• Overwhelming complexity of bill and of harmonizing
work of different committees in Senate, plus
between House and Senate
→ Key Role for Conference Committee if it gets that
far
• Health Care
• Unemployment Rate
• Don’t underestimate President’s determination
Supreme Court
Massachusetts v. EPA Decision
April 2007
GHGs are CAA “air
pollutants” which EPA
must regulate if it finds
endangerment to public
health or welfare
Case was in the context
of GHG emissions from
new motor vehicles, but
precedent applies to
sources across the
economy
Next Steps
• EPA to finalize endangerment finding
this year
• EPA’s first GHG regulation will be for
new motor vehicles by 3/31/10
• EPA will begin proposing GHG
performance standards for
categories of sources beginning next
year
The PSD Permit Problem for
Major Stationary Sources
As soon as auto GHG regs are finalized next
March, GHGs are regulated pollutants
At that time, “major” new and “major” modified
sources of GHG emissions must have PSD
permits with GHG Best Available Control
Technology
EPA “tailoring rule” to define “major” as
25,000 tpy CO2e – questionable legality
Expect several years of confusion as to what
is BACT for CO2 at various plants
CO2 Nuisance Decisions Are a
Huge Problem
• 2 federal courts of appeals: GHG
emitters can be held liable for tort of
global warming
• Further appeals likely
• Potential impact on legislative
debate
Copenhagen
• No one expects any significant
agreement at this point: issue is
Third World refusal to commit to
actual reductions
• Blame game commencing
• But watch out for last-minute deals:
U.S. and China have been talking
GHG REGULATION: HOW MUCH PAIN?
Peter Glaser
Troutman Sanders LLP
401 9th Street, N.W., #1000
Washington, D.C. 20004
202-274-2998
[email protected]

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