Archive for the ‘Clean Air’ Category

Indeck's Compact Clause Challenge

Written by Mike Pisauro on April 25th, 2009 in Clean Air, Federal, Global Warming, legislation | No Comments »

As I wrote recently, Indeck Corinth, L.P. has filed suit against the Governor of New York, the NY Department of Environmental Conservation and other agencies, challenging that state’s participation in the Regional Greenhouse Gas Initiative (RGGI). According to the complaint Indeck, a power generating company, alleges the state’s participation in RGGI is illegal for multiple reasons. The most interesting of these claims is that RGGI, itself, is “unconstitutional.” Indeck alleges that RGGI is an interstate compact that, under the Unites States Constitution, requires the consent and approval of Congress. Specifically under Art. 1, §10 Cl. 3 of the Constitution provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a Foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Indeck alleges RGGI is an interstate agreement or company but which has not been approved by Congress , is, in fact, illegal. The complaint also provides that:

Congress has the power to regulate emissions and establish interstate emission limits, which it has expressly chosen not to do. RGGI’s supplemental regulations are stricter than Federal regulations promulgated by the United States Environmental Protection Agency and thus, impermissibly encroach on Federal supremacy and interfere with the Federal interest in climate policy and Federal interest in regulating a national and international pollutant.”

One would think that after 200 plus years of having a constitution, one of the earliest portions of that constitution would have a clear and easy answer to this question. As with many things in law, however, there is no easy answer. Having said that, a review of the case law and commentary would seem to suggest that RGGI can operate legally – without obtaining Congress’ approval. In the last 100 years, caselaw dealing with this issue clearly demonstrates that that there are interstate compacts that require congressional approval and there are those that do not. The question seems to hinge on whether the interstate compact could/would have the potential to increase the political power of the states over the federal government.

The leading case in this area of the law is: United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). In Multistate Tax Commission the Court indicated that, if read literally, the Compact clause would prevent any grouping of states from entering into any kind of agreement no matter how trivial and short in duration. The Court did not believe that this was the result the constitutional framers would have desired. The Court then reaffirmed the “test” from an earlier case that limited the need for Congressional approval to “formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The Court also looked to see how the compact acted against these four questions:

· did the compact give the states or the multistate agency powers it did not already have?

· did the States delegate their sovereign power to the agency?

· did the state’s have the freedom to reject or accept the model rules and?

· could the States withdraw if they wanted?

In Multistate Tax Commission, the plaintiffs were challenging the creation of a multistate agency by several states to deal with the taxation of businesses with locations in multiple member states. The Court ultimately rejected the challenge by United States Steel under the compact clause. One of the reasons the Court gave was that, by joining together, the States were not doing anything that they could not have done on their own. Therefore, the answer to the first question is “no,” The multistate compact did not give the States power they did not already have.

The situation with RGGI is very similar to Multistate Tax Commission. Each State has the power to regulate air pollution independently of one another (note that GHGs are considered air pollution and can be regulated under the Clean Air Act – but that is a topic for another post.) It is conceivable that each State could independently regulate GHG emissions and create their own auctions for allowances. Each power generator in each state would then have to buy allowances from that state. Multistate generators would have to buy allowances in each state in which they had power plants. The multistate generators would not be able to transfer a NJ allowance to NY if they need to emit additional GHGs in NY. This system would be inefficient and might even cause more leakage than what is already occurring. RGGI is only improving the efficiency of a cap and trade system - it is not increasing the state power or RGGI’s power and, therefore, should pass muster on this requirement.

As to the second question, the Memorandum of Understanding signed by the RGGI explicitly states that RGGI has no regulatory or enforcement authority and that authority is reserved to the States. Therefore, the answer to that question is clearly “no.”The States did not give up any of their sovereign authority to RGGI.

As to the third question, there is nothing in the MOU that explicitly requires a State to adopt all portions of the Model Rule. Also, if I recall correctly, the model rule provides for various options that the State could adopt.

Lastly, in regards to the fourth question, the MOU also provides that any State can withdraw from RGGI with 30 days notice.

Based on the Court’s test RGGI will likely prevail against Indeck’s challenge under the Compact Clause. There may be other constitutional challenges, for example under the Commerce Clause, which may be of concern. Also, proposed Federal law would supplant RGGI for several years. But for now RGGI will be with us.

RGGI's 3rd Auction adds to NJ coffers

Written by Mike Pisauro on April 5th, 2009 in Clean Air, Global Warming, Renewable Energy | No Comments »

On March 18th RGGI had its third auction of CO2 allowances. Overall the auction brought in $117,248,629.80. The auction sold not only 2009 allowances at $3.51 per ton and also sold some 2012 allowances at $3.05 per ton. Of the total proceeds, NJ will receive $15,909,991.11 for the 2009 allowances and 864,058.90 for the 2012 allowances.

How will the $16,774,050.01 be spent in NJ? NJ enacted the Global Warming Solutions Fund (2007 c. 340) back in the very beginning of 2008. The statute provides on how the funds received from the RGGI auction will be allocated.

Sixty percent of the receipts will be sent to the NJ Economic Development Authority. The EDA is to provide grants or other financial assistance to commercial, institutional and industrial groups’ implementation of energy efficiency projects and installation of efficient electric generation facilities which could, but does not have to include renewable energy systems.

Twenty percent of the funds are to be dedicated to the reduction of electricity demand or costs of electricity for low and moderate income residential customers.

Ten percent goes to DEP for support of local government’s efforts to reduce greenhouse gas emissions. These efforts can include energy efficiency, renewable energy and land use programs.

Lastly the remaining ten percent is to be used by the DEP for forest and tidal marsh stewardship and restoration programs.

Hopefully, NJ takes these funds and uses them to truly achieve maximum results of reducing energy consumption through effective energy efficiency programs and the promotion of renewable energy. The next auctions are scheduled for June 17th and Sept. 9th. Beyond that may be an issue as a recent lawsuit by Indeck Energy is challenging NY’s RGGI program. Are other companies going to follow? In a future post I will take a look at the Indeck suit.

EPA reconsidering its earlier denial of Ca. waiver

Written by Mike Pisauro on March 6th, 2009 in Clean Air, Federal, Global Warming | No Comments »

I read a very good blog post from the NRDC regarding the EPA’s reconsideration of California’s request for a waiver under the Clean Air Act so that California can implement stricter greenhouse gas emission regulations for automobiles.  The post is here. Once the waiver is granted, New Jersey’s regulations which adopt the California regulations will be effective.  These clean car regulations is part of New Jersey’s plan to address global warming gases under its Global Warming Response Act.

Administrator Jackson was the Commissioner of DEP at the time that DEP adopted the Ca. regulations and she was very involved in the passage of the Global Warming Response Act.  I believe that bodes well for her decision to grant the waiver.

More promises on NJ's open space

Written by Mike Pisauro on January 18th, 2009 in Clean Air, Clean Water, Global Warming, Highlands, legislation, Politics, Sustainability | 1 Comment »

During this year’s State of the State speech, Governor Corzine stood before both houses of the legislature and spoke about the State’s commitment to open space. He said:

A second topic of vital concern is “open space,” and it’s a tough one. Not because we don’t want it, but because it’s a tough financing issue. Open space preservation has always been one of New Jersey’s priorities and which should be today, and it must be addressed before June 30th. It is my preferred approach that we put in place a long-term funding solution.

That said we need, at a minimum, an interim-bonding question for November’s ballot to extend the financing the voters approved in 2007.

On the face of it this is good news for the State’s open space program as that program is out of money. Unfortunately, this is not the first time that the Governor committed himself to open space preservation. He has on multiple occasions spoke on his and the State’s commitment to preserving open space. He has not followed through with his commitment. In fact he has on occasion worked against open space funding. In 2007 the legislature was moving strongly on passing legislation that would have created, with voter approval, a long term funding solution for open space. The Governor’s office stopped it and gave us a temporary solution instead, P.L. 2007 Ch. 119. When he signed P.L. 2007 Ch. 119, he promised that he would work with the legislature, during the lame duck session, to put in place a permanent solution. There was no leadership from the Governor’s office and his promise that during Nov and December 2007 a solution would be worked out did not occur.

Then on Sept. 5, 2008, Gov. Corzine issued Executive Order 114 regarding the Highlands. That E.O. provides that:

WHEREAS, in enacting the Highlands Act, the Legislature found and declared that, as a matter of wise public policy and fairness to property owners, a strong and significant commitment by the State is necessary to fund the acquisition of exceptional natural resource value lands; and

WHEREAS, it is vital that the Garden State Preservation Trust be reauthorized and that a statewide transfer of development rights program be considered to meet the open space and agricultural preservation needs of the Highlands Region and the State, and, in part, to address landowner equity issues in the Highlands Region.

Since September there has not been any direction from the Governor’s office on open space funding.

At the beginning of December, the Department of Environmental Protection released its draft Global Warming Response Act Recommendation. The Plan calls for funding of GSPT and calls for the legislature to

Reauthorize the Garden State Preservation Trust, and provide for incentives, technical assistance, and project facilitation, to continue and enhance conservation of the State’s natural assets.

I hope that the cumulative weight of all these promises forces the Governor and the Legislature to act and put in place a permanent solution for open space funding. New Jersey needs to actively preserve open space. Preserving open space is vital to the State of New Jersey for multiple reasons.

Over the last several years, NJ has been loosing open space at a rate of 16,600 acres per year. As we continue to lose space we increase sprawl, increase the time it takes for people to travel from home to work and back again. This increases everyone’s commuter costs and increases the amount of air pollution, including greenhouse gases, we emmitt.

As we continue to develop and put impervious cover over our lands, we diminish our ability to recharge our aquifers. New Jersey relies heavily on aquifers for its drinking water, especially in South Jersey. It is also one of the most important tools for preserving the drinking water from the Highlands, which supplies water to over half of new jerseyans.

As we loose more and more open space, one of our tools to address global warming is lost. From a global warming perspective the “estimated 1.5 million acres –one third of New Jersey’s dry land mass” which has been preserved provides for “substantial amount of carbon storage.” Open space, especially forest, act as a carbon sink.

Open space preservation is also important from an economic perspective. The eco-tourism industry in New Jersey provides close to $3.9 billion in economic benefits. Our natural resources also provide about $19 billion in economic benefits. In a time when property values are decreasing, it has been found that properties in close proximately to open space have a higher value than properties further away. Our open space funds also go to preserving farmland. Open space funds can be used to get people out of the flood plains so that we do not have to rebuild homes that have been destroyed by floods on multiple occasions. Open space is a multifunction tool in our economic engine.

In short, the Governor and the Legislature must keep their promises to putting in place a permanent funding solution for open space. It is too important economically and environmentally for us to allow this promise to be broken again. For more information on the campaign for open space, you can visit the Keep It Green Campaign’s website.

Wait a minute environmental laws weren't meant to protect?

Written by Mike Pisauro on June 4th, 2008 in Clean Air, Endangered Species, Global Warming | No Comments »

Back in April, President Bush unveiled his climate change plan. I wrote about it here. In his press conference he mentioned his disdain for how our present environmental laws are being used. He said:

“Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate changes. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate climate. . . . If these laws are stretched beyond their original intent . . . .” President Bush’ announcement on April 16, 2008.

Additionally, the Secretary of Interior repeated the Decider’s position with the announcement of the polar bear listing that, “the ESA was never intended to regulate global climate change.” (here)

Well that just got me thinking, were they right? Are the laws that were designed to protect the environment thirty years ago not suitable for protecting the environment today? Are these laws not able to protect against one of the greatest threats we are likely to encounter? Are the Clean Air Act (CAA), the National Environmental Policy Act (NEPA), or the Endangered Species Act (EPA), being twisted beyond their reach. So I started to review the statutory language of these laws and this is what I found….

The Clean Air Act (CAA), in the form we know it, was originally enacted in 1970. The CAA starts of with:

“The Congress finds – (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation.” 42 U.S.C.A. 7501.

The purpose of the CAA is: “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Gee, doesn’t it seem like we could very well have been talking about global warming? Isn’t transportation the cause of about 30 to 40 percent of the greenhouse gas emissions in the country? Doesn’t global warming threaten to alter where and when agricultural products can grow? Isn’t the threat of rising sea levels, increased storm activity and increased intensity of storms a cause of damage and deterioration of property? Aren’t the increased temperatures and number of days above 100 degrees a cause for concern on a public health basis? All of these things are predicted to occur under most global warming scenarios.

At least in the realm of transportation, the CAA defines air pollutants as “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. 7602. Again, at least when looking at motor vehicles contribution to global warming, it seems clear that a plain reading of the statute would indicate that the CAA has authority to regulate greenhouse gas emissions.

Now, looking at the National Environmental Policy Act (NEPA), the policies and goals of the statute provide, “The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, . . . the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, . . . to use all practicable means and measures, . . . to create and maintain conditions under which man and nature can exist.” 42 U.S.C.A. 4331(a).

NEPA, which is probably one of the shortest environmental statutes, requires that the government “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible office on – (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented” 42 U.S.C.A. 4332.

Again, according to a plain reading of NEPA, it looks like the effects of global warming clearly represent an environmental impact that NEPA’s statutory language would encompass.

The ESA, which some consider to the be the strongest of the environmental laws, provides, “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;” 16 U.S.C.A. 1531(a). The purpose of the act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Id. at (b). It is the policy of the ESA for the Federal government, “to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” 16 U.S.C.A. 1531(c)(1).

The ESA additionally provides that a species should be listed when:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range; . . .

(D) the inadequacy of existing regulatory mechanisms; or(E) other natural or manmade factors affecting its continued existence. 16 U.S.C.A. 1533(a)(1).

It seems clear from the FWS’s listing, the polar bear is threatened with extinction as the result of the destruction or modification of its habitat. That habitat is being destroyed or modified as a result of global warming. It is also clear that our current regulatory scheme is failing to address global warming and that humanity is causing, or at the very least significantly contributing to, global warming. Three of the five factors for listing a species have been met. It again seems clear that a plain reading of the ESA reveals that it, in fact, is a tool that can be used to combat global warming in that it requires the government to address the causes of the endangerment of a species.

While I will have to probably agree with our Decider in Chief that most legislators in 70′s probably did not think about global warming when they wrote any of these statutes or voted for them, that does not mean the authority and responsibilities within these statutes do not encompass global warming. If we accept that these statutes are not authorized to address global warming that is somewhat like saying that someone who discharges a brand new chemical into a waters does not need a permit because the chemical did not exist when we wrote the clean water act; therefore the clean water act does not cover this new chemical. That is silly and so is the contention that NEPA, ESA and CAA do not and cannot be tools we have at our disposal to help address global warming.

New Federal Global Warming Bill

Written by Mike Pisauro on June 3rd, 2008 in Clean Air, Global Warming | No Comments »

Two weeks ago, Sen. Boxer (D) introduced a new bill to address global warming. The Bill S2555 would overturn the EPA decision to deny California’s petition for the ability to enforce enhanced emissions on motor vehicles. I believe this was the first time a California request for a waiver was ever denied.

The Clean Air Act preempts state regulation of motor vehicle emissions. Because California was experiencing some of the worst air pollution in the County, California was granted special rights to request a waiver of this federal preemption. Once California receives a waiver from EPA than other states may adopt the California regulations as their own. New Jersey, and several other states, have already put into place regulations adopting the California regulations pending California’s receipt of a federal waiver. For those of you interested in reading NJ’s proposal it can be found here.

Motor vehicles are responsible for approximately 34% of New Jersey’s emissions. Therefore, for New Jersey to reach the goals under the Global Warming Act, NJ is going to have to address the transportation’s impact on global warming. Sen. Boxer’s bill is one step in addressing motor vehicle’s contribution to the situation and undoes just another roadblock set up by the Bush administration.