Weekly Climate Change Policy Update - March 8, 2010

Profession:Van Ness Feldman

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Article by Kyle Danish, Shelley Fidler, Kevin Gallagher, Megan Ceronsky and Tomás Carbonell


The Kerry-Graham-Lieberman team floated some elements of their plan: cap-and-trade for the power sector only, with a possible phase-in for industrial facilities, and a potential gasoline tax, with major oil companies advocating that the tax be payable at the pump. The Senators' plan drew mixed reactions from key moderates. It is not clear when legislative language will emerge . . . EPA Administrator Lisa Jackson offered to further tailor the Tailoring Rule, but coal state legislators Senator Jay Rockefeller (D-WV) and Rick Boucher (D-VA) want to let out the seams a bit more. Will the Rockefeller and Boucher "delay" bills provide enough cover for moderate Democrats to reject the Murkowski "derail" bill? . . . The Fifth Circuit is going to revisit en banc the Comer decision, which rejected a motion to dismiss a lawsuit by Katrina plaintiffs against numerous energy producers and energy-intensive manufacturers . . . Research published in Science estimates that approximately 7.7 million tons of methane are being released annually from the seabed of the East Siberian Arctic Shelf, an amount equivalent to prior estimates of methane emissions from all the world's oceans.

Executive Branch

EPA Administrator Offers Additional Details on "Tailoring" of Clean Air Act Programs. At a hearing of the Senate Interior and Environment Appropriations Subcommittee, Environmental Protection Agency (EPA) Administrator Lisa Jackson offered additional details on the agency's forthcoming "Tailoring Rule" for the implementation of the Prevention of Significant Deterioration (PSD) and Title V permitting requirements for greenhouse gases (GHGs). Jackson said that EPA would likely not impose PSD or Title V requirements on any facilities emitting less than 75,000 metric tons CO2-equivalent (CO2-eq) per year for "at least" two years, and that the emissions threshold would probably drop to 50,000 metric tons CO2-eq thereafter. In the form proposed last September, the Tailoring Rule would have imposed PSD permitting requirements on new stationary sources with the potential to emit at least 25,000 metric tons CO2-eq per year, and modified sources whose annual emissions increased by 10,000 to 25,000 metric tons CO2-eq. EPA's legal authority to adopt the Tailoring Rule has been questioned because these emission thresholds are many times greater than the 100 to 250 ton thresholds provided in the Clean Air Act for the PSD and Title V programs. Bills introduced this week in the Senate and the House would delay EPA's timetable (see discussion in the "Congress" section below). EPA Submits Reconsideration of "Johnson Memo" to OMB. According to the trade press, EPA has completed work on a rulemaking that would determine the date upon which GHG regulation under the PSD and Title V programs of the Clean Air Act would commence. The rule, which reconsiders a 2008 interpretive memorandum issued by former EPA Administrator Stephen Johnson (the "Johnson Memo"), has been transmitted to the White House Office of Management and Budget (OMB) for final review. Under the proposed form of the rule issued last September, GHGs would be considered "subject to regulation" under the Clean Air Act upon the effective date of EPA's forthcoming tailpipe GHG emission standards for motor vehicles. Those emission standards are expected to be released this month. Bills introduced...

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