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

2. Climate Change in Washington and Paris

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

4. 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

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

6. 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”)

7. 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

8. 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

9. 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

10. Schedule ▪By September 6, 2016: Submission of Plan, or Draft Plan Plus Extension Request ▪If Extension Request is Granted, Final Plan due September 6. 2018 ▪Implementation Milestones in 2022, 2025, and 2028 (or 2024, 2027 and 2029 if extended)

11. 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?)

12. Paris Accords

13. ▪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

14. Kyoto Protocols ▪Two “commitment periods” ▪2008 to 2012: greenhouse gas emissions reduction targets for certain participants in the Protocol ▪2013- 2020: 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

15. 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

16. 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

17. 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)

18. 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

19. Wetlands Rules

20. 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,

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

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

24. 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.

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