Peter McGrath Moore & Van Allen, PLLC Environmental Regulation: Update 2015

Climate Change in Washington and Paris

Climate Change ▪Clean Power Plan ▪Paris Accords ▪Add your third bullet point here

Clean Power Plan Massachusetts v. EPA (2007): Supreme Court holds that the Clean Air Act requires the EPA to regulate greenhouse gas emissions Observers expected Congress to act to direct how EPA should act,-- either a Cap and Trade System or a Carbon Fee, to prevent EPA mandatory regulation Cap and Trade System Passed the House in 2009, no action in Senate

Climate Change Plan (continued) ▪EPA Promulgated Plan in October 2015 ▪Follows Clean Air Act (and general federal environmental statutory) paradigm

Operation of Plan ▪Baseline for each state based on 2005 emissions ▪Overall nationwide goal: By 2030, 32% reduction of CO2 emissions from baseline level ▪Plan regulates fossil fuel fired electricity generating units (“EGUs”) ▪Each State to develop “best system of emission reductions” ( “BSER”)

BSERs Phase In ▪Improved efficiency at coal-fired EGUs ▪Shift from coal-fired EGUs to natural gas units ▪Shift from fossil fuel to zero-emitting renewables

More Baselines ▪2012 Baseline for Each State –Unfair to NC.– Clean Smokestacks Act in 1999 ▪Regional Baseline Emissions Rate (unit of greenhouse gas emitted per unit of energy produced) ▪Emissions Goal and Emissions Rate Goal for Each State

Federalism ▪Each state to submit its plan for EPA approval –EPA promulgated model plan ▪If approved, EPA delegates authority to the state to administer the Clean Power Plan in the state (in the form of the state approved plan) ▪EPA also developed a “federal implementation plan) which the EPA is to administer in states without approved plans

Schedule ▪By September 6, 2016: Submission of Plan, or Draft Plan Plus Extension Request ▪If Extension Request is Granted, Final Plan due September ▪Implementation Milestones in 2022, 2025, and 2028 (or 2024, 2027 and 2029 if extended)

Litigation ▪29 States joined in litigation against the EPA ▪DC Circuit Court of Appeal ▪States immediately sought a stay of the effectiveness of the plan ▪Stay denied by DC Circuit ▪Appealed to US Supreme Court ▪Supreme Court Granted Stay (Unprecedented Step?)

Paris Accords

▪December 12, 2015, 195 nations became parties to the Paris Agreement ▪Expands the 1992 United Nations Framework Convention on Climate Change and the 1997 Kyoto Protocol ▪Iran, China, Russia, and India are parties

Kyoto Protocols ▪Two “commitment periods” ▪2008 to 2012: greenhouse gas emissions reduction targets for certain participants in the Protocol ▪ : The Doha Amendment. 37 nations committed to establishing additional binding greenhouse gas emission target limits. (Seven of the 37 have so far actually adopted such limits.) ▪Paris Agreement is intended to provide a framework for addressing climate change issues after the expiration of the second commitment period

Goals of Agreement ▪“Aim” to reach global peaking of greenhouse gas emissions as soon as possible ▪Long term temperature goals: –Holding the increase of global average temperature to well below 2 degrees Celsius above pre-industrial levels –Pursue efforts to limit the temperate increase to 1.5 degrees Celsius above pre-industrial levels

Terms of Agreement ▪Each party to prepare, communicate, and maintain successive nationally determined contributions to the emissions reduction goal that it intends to achieve ▪No objective standards by which the world or other parties may judge the contributions proposed by each party

Dividing the World Into Two Parts ▪Developed country parties and developing country parties ▪Not defined in the Agreement ▪1992 United Nations Framework Convention on Climate Change divided the world into two parts, countries that had “historical responsibility” for increased atmospheric carbon levels and those that did not. ▪Counties with historical responsibility were listed in Annex 1 of the framework. (Annex I countries are the countries to whom the “first commitment period” target reduction limits applied)

Financial Commitments ▪The only actual commitments? ▪Developed country parties “shall” provide financial resources to assist developing country parties with respect to both mitigation and adaptation in continuation of their existing obligations under the convention ▪Developed country parties “shall” every other year communicate quantitative and qualitative information including projected levels of public financial resources to be provided to developing country parties

Wetlands Rules

Wetlands Background ▪Federal Jurisdiction over “waters of the United States,” including wetlands ▪Solid Waste Agency of Northern Cook County v. USACE (migratory birds don’t confer federal jurisdiction) ▪Rapanos v. US (federal jurisdiction only where there is relatively permanent flow, and a continuous surface water connection between the wetlands and a relatively permanent waterbody,

Status ▪Sixth Circuit to Hear Consolidated Challenges to the Rule ▪Supreme Court to Rule on Whether a “Jurisdictional Determination” Itself Can be Challenged

National Ambient Air Quality Standards ▪Changes to Ozone Standard to 70 from 75 ppm

Reset of Hazardous Waste Generator Rules ▪Allowing a hazardous waste generator to avoid increased burden of a higher generator status when generating episodic waste provided the episodic waste is properly managed and ▪Allowing a conditionally exempt small quantity generator (CESQG) to send its hazardous waste to a large quantity generator under control of the same person.

Superfund Update ▪Limits on Joint and Several Liability ▪Intent to Dispose