In a recent interview with Rolling Stone Magazine, President Obama highlighted his intention to make climate change and environmental issues a centerpiece of his 2012 reelection campaign.

The Environmental Protection Agency will not lower the existing thresholds in its tailoring rule for stationary emissions sources to obtain greenhouse gas permits, the agency said in a proposed rule released February 27, 2012.

On February 22nd, the Federalist Society for Law & Public Policy Studies Madison, WI Chapter will host a lunch and CLE event titled EPA's Climate Change Regulations: Good Public Policy or Government Overreach? The discussion panel includes Prof. Jonathan Adler, Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law and Prof. Stephanie Tai, Assistant Professor of Law, University of Wisconsin Law School. The event will be moderated by Ellen Nowak, Esq., Commissioner of the Wisconsin Public Service Commission.

Mandated by the FY2008 Consolidated Appropriations Act, the EPA launched the GHG Reporting Program in October 2009, requiring the reporting of GHG data from large emission sources across a range of industry sectors, as well as suppliers of products that would emit GHGs if released or combusted. The first data reported under that rule has now been released to the public in an easy to use database.

The EPA’s online data publication tool allows users to view and sort GHG data for calendar year 2010, the first year data was collected under the mandatory rule, from over 6,700 facilities in a variety of ways—including by facility, location, industrial sector, and the type of GHG emitted. For example, the data set includes information on 136 GHG emitters in the state of Wisconsin.

The Environmental Protection Agency will develop and finalize multiple rules over the next several years that will dramatically impact the air, water, and energy regulatory climate. This unprecedented level of activity will be mirrored at the state level since each federal regulation will trigger the promulgation of state rules to implement the standards. Studies have shown these rules will have an impact on the overall economy, jobs, competitiveness, and energy costs.

Below is a brief summary of of the most recent action on the multitude of rules under promulgation as well as information on expected future actions.

The EPA’s Office of the Inspector General, on September 28th, criticized the way the EPA reviewed scientific data to support its finding that greenhouse gases should be regulated under the Clean Air Act. The Inspector General’s report suggests the Obama administration cut corners before concluding that climate-change pollution can endanger human health.

The EPA and the National Highway Traffic Safety Administration (NHTSA) were slated to release joint greenhouse gas and mileage standards for model years 2017-2025 cars and light trucks this week. However, the agencies have announced those rules will now be delayed until November.

The Environmental Protection Agency (EPA) has issued its final report identifying a number of regulations that it will target for modification or elimination in response to Executive Order 13563. The EPA’s report discusses 35 planned regulatory reviews in five main environmental areas.

On September 15th, the EPA confirmed it will not meet a court ordered September 30th deadline to propose greenhouse gas emissions limits for power plants. This is the second time the EPA has delayed the proposal, which was originally supposed to have been issued in July 2011.

In response to an inquiry by Alaska Senator Lisa Murkowski, the Federal Energy Regulatory Commission (FERC) conducted a preliminary assessment of the impact of upcoming EPA rules on the energy generation. The FERC concluded, in a letter from three FERC commissioners, that it is “likely” or “very likely” that 81 gigawatts (GW) of generating capacity will be retired in the face of new regulations.

The preliminary assessment is based on incomplete information since the EPA is still drafting many of the rules the assessment was addressing, but reductions of this scale are likely given that the EPA is modifying many major rules in a short period of time.  

In response to the letter, Sen. Murkowski, who is a member of the Senate’s Committee on Energy and Natural Resources, noted that the FERC’s analysis raises more questions than answers:

• Should utilities or FERC be responsible for reliability analyses, and when will those analyses be completed?
• Why has FERC not conducted its own formal study or sought to have utilities complete that work, especially in light of EPA’s aggressive regulatory schedule?
• Why did FERC opt to proceed informally in light of the seriousness of the matter and its impact on matters within the Commission’s jurisdiction?
• Is it possible to definitively state that reliability is not jeopardized by EPA’s rulemakings?
• What process will facilitate access to information that FERC says it currently lacks?

GLLF is tracking the progress of the EPA’s rule development and implementation on its Regulatory Watch website.

This post was authored by GLLF staff attorney Emily Kelchen.

The Supreme Court’s ruling last week in American Electric Power Co. v. Connecticut sent the message that the courts will not be involved with climate change regulation more than is absolutely necessary. The court emphasized that Congress and the EPA, not the courts, are the parties responsible for this sort of detailed regulation. Congress has backed away from the issue, but the EPA has stepped up its efforts to combat global warming.

Federal Program

Since May 2010, when the EPA issued its final rule establishing its approach to regulating greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act (CAA) permitting programs, the EPA has been focused on implementing the new rule.

The final rule set GHG emissions thresholds that define when permits under the New Source Review, Prevention Significant Deterioration (PSD), and Title V Operating Permit programs are required for new and existing industrial facilities.

Typically permitting program emissions thresholds for criteria pollutants such as lead, sulfur dioxide and nitrogen dioxide, are 100 and 250 tons per year (tpy). Because GHG emissions are emitted at a much higher volume than these criteria pollutants, the sheer volume of newly regulated PSD sources would be staggering. For example, using the 250 tpy threshold, more than one million commercial-sector sources would be subject to the PSD permitting program.

To minimize the number of newly regulated sources, the EPA issued the “tailoring” rule to postpone Title V and PSD regulation of stationary sources for smaller sources. The second phase of the federal program starts on July 1, 2011. Two key parts of the program kick in on that date:

• PSD permitting requirements will cover, for the first time, new construction projects that have GHG emissions of at least 100,000 tons per year, even if they do not exceed the permitting thresholds for any other pollutant.
• Modifications at existing facilities that increase GHG emissions by at least 75,000 tons per year will be subject to permitting requirements, even if they do not significantly increase emissions of any other pollutant.

The EPA estimates the majority of affected sources across the country will be solid-waste landfills and large-scale manufacturers. In Wisconsin, ethanol producers will also be affected.

The EPA is also making progress with its controversial plan to impose GHG emission limits on power plants and oil refineries. Initially the EPA indicated it would issue proposed regulations by July 26, 2011 and final regulations by May 26, 2012, but there is current speculation that the final rules could be delayed until after the November 2012 presidential election.

State Program

In Wisconsin, the state’s companion program to the EPA’s is moving forward apace. The emergency rule’s expiration date was extended to through July 13, 2011 since the permanent rule is not yet fully promulgated. The final version of the proposed permanent rule was sent to the legislature at the end of April. The Senate chose not to take action, but the Assembly this week held a public hearing and waived the review period, clearing the way for the rule’s finalization.

Not every state has agreed to develop a companion program, most notably Texas. Texas recently brought suit against the EPA arguing that the tailoring rule is an unconstitutional amendment of the CAA statutes and a usurpation of legislative power.  

The GLLF is following the progress of both the federal and state rules on its Regulatory Watch Website.  

This morning the United States Supreme Court issued four decisions, including the global warming standing case American Electric Power Co. v. Connecticut and the class action certification case Wal-Mart v. Dukes.

American Electric Power Co. v. Connecticut

This is the Court’s first opinion on climate change since it ruled in 2007 in Massachusetts v. EPA that greenhouse gases are “pollutants” subject to Clean Air Act regulation.

Wisconsin (before it dropped out of the case) was one of eight states that sued defendant utilities, American Electric Power Co., Southern Co., Xcel Energy Inc., the Tennessee Valley Authority, and Cinergy Corp., for their alleged contribution to global warming. The states were asking the court to impose stricter greenhouse-gas regulations than those currently imposed by the EPA by declaring CO2 a nuisance.

Beginning on January 2, 2011, the EPA required large plants and factories planning to make major modifications or build new facilities to obtain pre-construction permits addressing their GHG emissions. These facilities, such as oil refineries and power plants, must obtain air permits and carry out energy efficiency measures or use cost-effective technology to reduce their greenhouse gas emissions.

Recently, however, the EPA has taken a significant step away from regulation by proposing to defer, for three years, Prevention of Significant Deterioration (PSD) and Title V permitting requirements for carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary sources.

Four years ago Wisconsin, along with five other Midwestern states, signed The Midwestern Greenhouse Gas Reduction Accord. Although moving forward on other fronts, Wisconsin has all but abandoned efforts to work with other states in the Accord to reduce greenhouse gases, preferring to go it alone.

The Accord was adopted by the Midwestern Governaors Association in 2007. The Accord called for member states to reduce greenhouse gas emissions to 20 percent below 2005 levels by 2020 and 80 percent below 2005 levels by 2050 through regulation of electricity generation and other sources.

Originally sent to the EPA for approval in 2007, Wisconsin’s Reasonably Available Control Technology (RACT) rules for nitrogen oxides (NOx) emissions have finally been approved.

The Court will review a U.S. appeals court ruling that reinstated a 2004 lawsuit by eight states, New York City and three land trusts claiming the utilities have created a public nuisance by contributing to global warming.

The utility companies said in the appeal that the case involved political questions for Congress and the president, not the judiciary.

The states -- California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin -- and the other plaintiffs urged the top court to reject the appeal by the utilities. That would have allowed the lawsuit to go forward.

As reported in the Wall Street Journal:

The private utilities said the ramifications of the appeals court ruling were staggering. If judges can order emissions caps, such directives "could transform the way the United States produces and obtains energy, limit its supply, dramatically raise its cost and jeopardize reliable service to the public," the companies said in a court brief.

In a separate legal brief, the Obama administration, representing the TVA, said questions about how to regulate carbon-dioxide emissions should be addressed by the executive and legislative branches of government, not the courts. It also said recent Environmental Protection Agency efforts to regulate emissions should displace the plaintiffs' ability to sue.

The administration, however, had not urged the Supreme Court to hear the industry appeal. Instead, it asked the justices to send the case back to the appeals court for consideration of other issues. The high court chose not to take that approach.

The EPA and National Highway Traffic Safety Administration (NHTSA) today issued a joint notice announcing plans to “propose stringent federal greenhouse gas and fuel economy standards for light-duty vehicles for the 2017-2025 model years as part of a coordinated National Program.”

Earlier this year (May 7), the Obama Administration issued a final joint rule to reduce greenhouse gas emissions and increased fuel economy for all new cars and trucks sold in the United States covering model years 2012 through 2016 (equivalent to 35.5 miles per gallon if the automotive industry were to meet this CO2 level all through fuel economy improvements).

According to their announcement today, EPA and NHTSA “will continue to develop standards on an attributed-approach, using the vehicle size measure of ‘footprint,’” similar to the way the agencies did for the recent standards for model years 2012-16. The agencies plan to issue a joint Notice of Proposed Rulemaking by September 30, 2011 and a Final Rulemaking by July 31, 2012.

For more information about today’s announcement, and previous federal fuel economy and greenhouse gas emission standards, click here.

The federal government and the Wisconsin Legislature have declined to act on climate change, but that is not stopping the Wisconsin Department of Natural Resources from taking steps to confront perceived threats.

DNR Secretary Matt Frank has signed an agreement with the state of Michigan on behalf of the state of Wisconsin, pledging social, economic, and governmental changes to prevent significant global warming.

The joint memorandum provides a framework for the leadership of the Wisconsin Department of Natural Resources and the Michigan Department of Natural Resources and Environment to establish common goals to jointly pursue research, planning, and implementation focused on climate change.

Moving forward, both states agree to invite additional state partners to exchange information, and enhance coordination and cooperation. They plan to identify and communicate opportunities for joint participation in projects and programs of mutual interest and share the results of research to maximize capability and limit duplication of effort. Wisconsin and Michigan will provide technical assistance to help to ensure that appropriate environmental and engineering evaluations are conducted. And the states will propose action and potential funding options for greenhouse gas mitigation and climate change adaptation.

(This post was authored by Hamilton Consulting Group's intern, Emily Kelchen, a third year law student at the University of Wisconsin Law School.)

Monitoring greenhouse gases (GHG) has already begun and the first reports are due in a few short months, but for the third time this year the EPA is proposing amendments to the GHG reporting requirements. The EPA predicts that a final rule will be published by the end of 2010, which is good news considering the first reporting deadline is March 2011 and somewhere around 10,000 facilities will be impacted.

The EPA has proposed two rules to ensure New Source Review Prevention of Significant Deterioration (PSD) permits that address greenhouse gases (GHG) are issued.

The first rule directs 13 states to revise their permitting plans while all other states evaluate their plans to determine if they are adequate.

The second rule creates a federal implementation plan for PSD permits in case a state finds its permits are not adequate and cannot revise them before the Tailoring Rule becomes effective in 2011. This plan gives the EPA temporary authority to issue permits for large GHG emitters in a state while the state revises its rules.