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Supreme Court Decisions Raise Questions about Future Judicial Scrutiny of EPA’s Clean Power Plan

Posted in EPA

Two of the Supreme Court’s major, end-of-term decisions turn on the deference the Court gives to agency determinations of the meaning of ambiguous clauses in complex regulatory statutes, applying the familiar Chevron framework.  The Court’s less deferential applications of Chevron raise important questions about the deference courts might be expected to give to the scope of EPA’s exercise, in its Clean Power Plan, of its statutory authority to establish carbon dioxide emission reduction standards for existing fossil-fuel power plants under Section 111(d) of the Clean Air Act.

In King v. Burwell, the Court reviewed an Internal Revenue Service regulation that allowed tax subsidies under the Affordable Care Act for insurance plans purchased on either a federal or state-created “Exchange.”  In Michigan v. EPA, the Court reviewed EPA’s threshold determination under Section 112 of the Clean Air Act that it was “appropriate and necessary” to initiate regulation of hazardous air pollutants emitted by power plants, without consideration of costs at that initial stage of the regulatory process.

The outcome in each case depended upon the Court’s review of the regulatory context of the applicable ambiguous statutory clause.  Since the context of Section 111(d) of the Clean Air Act differs markedly from the contexts of the Affordable Care Act and Section 112 of the Clean Air Act, the outcomes in King v. Burwell and in Michigan v. EPA do not likely portend the outcome of future court challenges of the Clean Power Plan.  However, the Court’s application of Chevron deference in these two cases may portend a strikingly less deferential judicial review of EPA’s Clean Power Plan than might have been expected under the traditional two-part test of Chevron.

Under Chevron, courts examine first whether a regulatory statute leaves ambiguity and, if so, courts are directed to defer to a federal agency’s reasonable resolution of the ambiguity in a statute entrusted to administration by that agency.  All of the Court’s majority and dissenting opinions in King v. Burwell and in Michigan v. EPA (except for Justice Thomas’s lone dissenting opinion questioning the constitutionality of Chevron deference) confirm the applicability of the traditional Chevron framework.  What stands out in these cases is that the Court’s majority opinions do not defer to the agency’s resolution of ambiguity.

Chief Justice Robert’s opinion for a 6-3 majority in King v. Burwell grounds Chevron in “the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”  But, “in extraordinary cases,” the Court states that Congress may not have intended such an “implicit delegation.”  The Court holds the statutory ambiguity before it to be one of those extraordinary cases in which Congress has not expressly delegated to the respective federal agency the authority to resolve the ambiguity and, therefore, seemingly, zero deference is given by the Court to the applicable IRS regulation.  The Court explains that whether billions of dollars in tax subsidies are to be available to insurance purchased on “Federal Exchanges” is a question of “deep economic and political significance,” central to the scheme of the Affordable Care Act, such that had Congress intended to assign resolution of that question to the IRS “it surely would have done so expressly,” especially since the IRS “has no expertise in crafting health insurance policy of this sort.”  Eschewing any deference to the IRS interpretation, the Court assumed for itself “the task to determine the correct reading of” the statutory ambiguity.

King v. Burwell is the rare case in which the Court accords a federal agency zero deference in resolving statutory ambiguity under Chevron.  Notably, the Court left open how appellate courts should determine whether other statutory ambiguities similarly deserve less or no deference to agency interpretations.  The Court, perhaps, offered a hint by citing to its much quoted dicta in its 2014 decision in Utility Air Regulatory Group v. EPA that the Court “typically greet[s] … with a measure of skepticism, … agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”  Many commenters have opined, even before King v. Burwell, as to whether this dicta has implications for judicial review of the Clean Power Plan, which, it may be argued, has “deep economic and political significance” comparable to the Affordable Care Act.  However, EPA surely has longer experience, greater expertise and wider latitude in crafting policy under the Clean Air Act than the IRS has in crafting health insurance policy.  Given the Court’s strong precedent establishing that greenhouse gases are expressly within the scope of the Clean Air Act, appellate courts might distinguish King v. Burwell and apply traditional Chevron deference to the final Clean Power Plan.

Michigan v. EPA applies Chevron to EPA regulations under a different part of the Clean Air Act.  In this case, the Court reviewed EPA’s threshold determination, under Section 112 of the Clean Air Act, that it was “appropriate and necessary,” without regard to costs, to regulate hazardous air pollutants, such as mercury, from power plants.  The specific mercury emission limits imposed on categories of power plants were established during subsequent phases of EPA’s rulemaking under Section 112 based on EPA’s explicit consideration of costs.  Justice Scalia’s opinion for a 5-4 majority strikes down EPA’s determination that it could find regulation of hazardous air pollutants from power plants to be “appropriate and necessary” without consideration of costs.  The Court states it was applying the traditional Chevron framework, under which it would normally defer to EPA’s choice among reasonable interpretations of the  ambiguous and “capacious” statutory test requiring an EPA finding that regulation be “appropriate and necessary.”  But, the Court finds EPA’s interpretation of this test, as not requiring any consideration of costs, to “have strayed far beyond … the bounds of reasonable [statutory] interpretation.”  Michigan v. EPA may be the first case in which the Court has applied Chevron to find that EPA adopted an entirely unreasonable resolution of statutory ambiguity in its Clean Air Act regulations.

Justice Kagan’s dissent in Michigan v. EPA faults the Court for failing to give due deference under Chevron to EPA’s decision as to when in its regulatory process it gives consideration to the costs involved in regulating hazardous air pollutants from power plants.  While all nine Justices seem to agree that EPA must consider costs in its Section 112 rulemakings, and seem also to agree that EPA gave consideration to costs in later stages of its rulemaking, the dissent criticized the majority’s “micromanagement of EPA’s rulemaking,” emphasizing that EPA reasonably determined “that it was ‘appropriate’ to decline to analyze costs at a single stage of a regulatory proceeding otherwise imbued with cost concerns.”

It is difficult to predict whether, based upon King v. Burwell and Michigan v. EPA, appellate courts might narrow the deference accorded to EPA’s resolution of statutory ambiguities under Section 111(d).  Those ambiguities arise in a quite different context than those considered by the Court.  As one example, critics of the Clean Power Plan have argued that two different versions of Section 111(d) appear to have been signed into law, one of which critics claim should prohibit EPA from issuing regulations under Section 111(d) for sources of pollution already covered by other EPA regulations, such as hazardous pollutant regulation under Section 112.  EPA sharply disagrees with its critics and defends its interpretation of which statutory version applies and the scope of permissible regulation under either statutory text.  A related issue under the statutory version pressed by critics concerns whether the status of the hazardous air regulations under Section 112, during remand after Michigan v. EPA, should alter EPA’s analysis the potentially competing statutory provisions.  It remains to be seen what kind of Chevron deference courts will give to EPA’s reasoned interpretations of the different versions of Section 111(d).

Critics also point to purported ambiguity in Section 111(d) as to whether EPA may prescribe carbon dioxide performance standards based on so-called “outside the fence” measures, and whether those standards may be determined on an average state-wide basis, rather than for individual sources.  EPA’s resolutions of these and related programmatic issues have occasioned widespread commentary and may feature prominently in future court challenges to the Clean Power Plan.  Again, it remains to be seen whether the Court’s recent cases will influence the extent of Chevron deference given by appellate courts to EPA’s well-considered interpretation of its authority to craft the details of the Clean Power Plan under Section 111(d).

On one point, there should be little doubt.  Section 111(d) expressly directs EPA to consider costs in establishing performance standards reflecting “the best system of emission reduction.”  Unlike in Michigan v. EPA, EPA expressly addressed “costs” as a factor considered in its proposed rules.  EPA is expected to elaborate upon the costs (and benefits) of regulation in its final Clean Power Plan.  Michigan v. EPA should, therefore, be inapposite with respect to any possible challenges of the manner in which the Clean Power Plan addresses costs.

The applicability of Chevron deference is, of course, only one among many legal issues that could face the U.S. Courts of Appeals and, ultimately, the Supreme Court, if and when they review the Clean Power Plan.  The precise legal issues to be framed for the courts and the timing of litigation will not begin to come into focus until after the Obama Administration issues the final Clean Power Plan later this summer.  And, Congress could step in and alter the course of judicial review.  Stay tuned.

The Road to Paris 2015: EU Emissions Trading Scheme and its Application to Non-EEA Airlines – Enforcement on the Rise?

Posted in COP21 - The Road to Paris 2015

Europe is stepping up enforcement of its climate change rules against foreign airlines.  Recently, a Belgian authority competent for the enforcement of the EU Emissions Trading System (“ETS”) on airlines flying to and from Brussels, collected a fine of €1.4 million.  The fine was imposed on Saudi Arabian Airlines for failing to surrender emission allowances.  This follows a UK judgment upholding the UK Environment Agency’s fine against the Indian carrier Jet Airways for failing to report emissions from its intra-European flights in 2012.  These are only two out of many examples of fines for non-compliance with the emissions trading rules.

This increased enforcement comes at the time when the International Civil Aviation Organization (“ICAO”) is supposed to reach an agreement on international aviation emission reductions.

The Cap and Trade System

The ETS is a “cap and trade” system, established by Directive 2003/87/EC (“ETS Directive”).  In short, under the ETS Directive, European authorities issue a limited number of emission allowances on a yearly basis.  This cap represents the total amount of greenhouse gas emissions that operators, including airlines, may emit.  The number of allowances drops over time, encouraging operators to lower their emissions.  Operators are allocated a limited number of allowances per year, and every April 30, operators must surrender a number of allowances equal to their prior year’s emissions.  If an operator expects to exceed its annual number of allowances, it must purchase additional allowances from other operators.

Under the ETS Directive, airline companies must:

  • Register with the ETS Union Registry.  The Union Registry is an online database that keeps track of all the emission allowances in the EU, including all transactions that take place using those allowances.
  • Surrender, by April 30th of each year, a number of allowances equal to the total emissions from their aircrafts during the preceding calendar year.  Upon surrender, the competent Member State authorities must cancel the allowances.
  • Monitor and report emissions from each aircraft that they operate, per calendar year.

The ETS applies to Economic European Area (“EEA”) and non-EEA airlines.  However, until December 2016 the rules will only be enforced for intra-EEA flights, i.e., flights that take place between European airports.  After 2016, the cap and trade rules will also effectively apply to flights to or from airports in the EEA unless the EU is satisfied with the ICAO’s progress on an international agreement to reduce emissions.

Enforcement on the Rise?

The ETS Directive provides for two types of penalties:

First, aircraft operators must pay a fine of €100 per ton of CO2 (or CO2 equivalent) that they emit in excess to the number of allowances they surrender.  In addition, aircraft operators will be required to obtain and surrender sufficient allowances to cover the excess emissions.  These fines are the same throughout the EEA.

Second, Member States must impose “effective, proportionate and dissuasive” penalties on  airlines that fail to comply with their other obligations under the ETS Directive.  These fines may vary significantly from one Member State to another.  For example, the maximum fine in Spain for failure to comply with monitoring and reporting obligations could be as high as €2.000.000, whereas in the United Kingdom it is only €50.000.

The recent enforcement actions on Jet Airways and Saudi Arabian Airlines are the latest of a series of enforcement actions against non-EEA airlines that failed to comply with the EU’s cap and trade rules.  The UK Environment Agency recently published a list of the fines it imposed on Air India, Loid Global Ltd, Oranto Petroleum, Media Consulting Services LLC, and Primevalue Trading Ltd for failure to surrender allowances by April 30th, 2013.  Similarly, in 2013 German authorities published a list of airlines and aircraft operators that did not comply with the ETS in 2012, including non-EEA companies such as Air Arabia Egypt, and Tathra International.  In addition, the French authorities also fined non-compliant airlines, such as the Swiss airline Legend Air.  The €112.500 fine was imposed for failing to surrender 1.125 allowances for the year 2012.

It will be interesting to see whether these enforcement practices will influence the negotiations within the ICAO regarding an agreement to reduce emissions from aviation by 2016.

Pedro Mendez de Vigo is a Covington summer legal trainee from the Universidad Autónoma de Madrid.

DECC Announces Early Closure of UK Renewables Obligation

Posted in Renewables

In our three-part series published last week, we outlined the possibility of the UK Government closing the Renewables Obligation (“RO”) scheme to new onshore wind generating stations in 2016, a year earlier than expected.

On 18 June 2015, the UK Department for Energy & Climate Change (“DECC”) formally announced the UK Government’s intention to close the RO across Great Britain to new onshore wind generating stations from April 2016.  Energy and Climate Change Secretary Amber Rudd stated: “[…] Onshore wind is an important part of our energy mix and we now have enough subsidised projects in the pipeline to meet our renewable energy commitments”.

Details of the legislation bringing the UK Government’s intended changes have not yet been provided, but the impact on the future growth of onshore wind in the UK is potentially significant.  Last year, onshore wind generated 5% of the UK’s total electricity, with the help of “over £800m of Government subsidies”, according to DECC.  Currently, 5,500 onshore wind turbines have been installed or are under construction in the UK, and another 3,000 have planning permission.  It is not yet known how many projects will be affected by the early closure of the RO.

While DECC has indicated that up to 5.2 GW of onshore wind capacity could be eligible for grace periods, it has yet not confirmed that this will be the case.  Its current position is that the UK Government is  “minded to offer” grace periods “to projects that already have planning consent, a grid connection and acceptance, as well as evidence of land rights”.

Prior to the announcement, there was uncertainty over whether the changes would extend to Scotland.  It now appears that the UK Government intends for the changes to affect the whole of Great Britain, which has reportedly been “met with outcry” by the Scottish Government.  Scottish Energy Minister Fergus Ewing described the decision as “deeply regrettable”, adding that it “will have a disproportionate impact on Scotland”.

The Scottish Government is but one of many critics of the decision, along with industry representatives, UK media outlets and business commentators.  Michael Pollitt, professor of business economics at Cambridge Judge Business School, has described the proposed changes as “a bad mistake”, coming at a time where the costs of onshore wind technology “are coming towards grid parity”.  Katja Hall, deputy director-general of the Confederation of British Industry expressed broader concerns: “Cutting the Renewables Obligation scheme early sends a worrying signal about the stability of the UK’s energy policy framework.  This is a blow, not just to the industry, and could damage our reputation as a good place to invest in energy infrastructure.

As outlined in our earlier series, there are possible legal avenues available for challenge and redress for those affected.  According to Mr Ewing, the Scottish Government has “warned the UK Government that the decision, which appears irrational, may well be the subject of a Judicial Review”.

The Uncertain Future of the UK Renewables Obligation: A Three-Part Series

Posted in Renewables

In early June 2015, the UK Department for Energy & Climate Change (“DECC”) was expected to announce plans to close the existing subsidy scheme for onshore wind, the Renewables Obligation (“RO”), to new generating capacity a year earlier than expected. This announcement has been delayed amid concerns that it could spark potential legal challenges from the industry and lead to a dispute with the Scottish Government over the future of onshore wind.

In this three-part series, we outline how the RO operates, the potential impact of the early closure of the RO upon the onshore wind industry, and the possible routes for challenge and redress for industry participants who may be affected.

Part Three: An Overview of the Legal Mechanisms for Challenge and Redress by
Those Potentially Affected by the Early Closure of the Renewables Obligation

In the first two parts of this series, we considered how the RO operates, possible plans to close the RO in 2016, and the potential impact of those plans upon the onshore wind industry. In this final post, we outline two possible legal avenues for challenge and redress by those who may be affected by the early closure of the RO: through the national courts and under international investment treaties.

The first possibility is to challenge the Government’s actions through the national courts. This route recently has been used by the solar industry, with mixed results. In 2012, the Supreme Court refused the Government’s appeal to cut solar feed-in-tariffs before the completion of a consultation on the matter. However, in November 2014, the High Court refused an application for judicial review against the Government’s decision to close the RO to ground and building mounted solar photovoltaic capacity above 5 megawatts in 2015 rather than 2017.

Affected investors could also consider commencing international arbitration proceedings under an investment treaty. If successful, an investor could obtain compensation for the loss of their investment as a result of measures introduced by the Government. However, this option would only be available to foreign investors from member States that have an investment treaty in place with the UK, and who have made a qualifying investment in the UK, as defined by the applicable treaty.

A number of European states, including Spain, are currently being sued by foreign investors under the Energy Charter Treaty as a result of changes to national solar subsidies. Marcus Trinick QC, representing Renewables UK, has warned Energy Minister Amber Rudd to “be aware of the dangers of state aid discrimination and look at what is happening in international energy arbitration across Europe. In such a position we could not afford not to fight, especially if action is taken to interfere retrospectively.

Media reports suggest that, given the extent of industry opposition, DECC is delaying an announcement to allow for further refinement of the proposed measures and their impact, in order to reduce the scope for legal challenges. Marcus Trinick QC has emphasised the need for dialogue between the industry and the Government before action is taken, which could reduce the risk of legal challenges arising.

The message from industry representatives is clear: the early closure of the RO would be a major blow to the future of onshore wind in the UK, which could spark a legal battle with the UK Government. As Maf Smith, deputy chief executive of RenewableUK, has stated, “[t]he industry will fight against any attempts to bring in drastic and unfair changes utilising the full range of options open, including legal means if appropriate.

The Uncertain Future of the UK Renewables Obligation: A Three-Part Series

Posted in Renewables

In early June 2015, the UK Department for Energy & Climate Change (“DECC”) was expected to announce plans to close the existing subsidy scheme for onshore wind, the Renewables Obligation (“RO”), to new generating capacity a year earlier than expected. This announcement has been delayed amid concerns that it could spark potential legal challenges from the industry and lead to a dispute with the Scottish Government over the future of onshore wind.

In this three-part series, we outline how the RO operates, the potential impact of the early closure of the RO upon the onshore wind industry, and the possible routes for challenge and redress for industry participants who may be affected.

Part Two: How Would the Renewables Obligation’s
Early Closure Affect the UK Onshore Wind Industry?

Part One of this series outlined the RO scheme and the expected announcement to close the RO earlier than anticipated. In this second post, we consider the potential impact of such measures upon the onshore wind industry.

Until the consultation with devolved authorities (Scotland and Northern Ireland) is completed, and detailed proposals are published, the timing and nature of the impact on the industry will be uncertain.

There are currently around 3,000 new turbines with a combined capacity of more than 7 gigawatts seeking planning permission, many of which would have been expecting to secure accreditation under the RO. Bloomberg Energy Finance has estimated that, if the RO closes to new generating capacity in 2016 and onshore wind was not eligible for public subsidy under the Contracts for Difference scheme, less than half the capacity of projects in advanced stages of planning would benefit from subsidies.

The majority of the planned projects are due to be located in Scotland. Given the apparent tension between the Scottish First Minister and Prime Minister over the future of onshore wind (referred to in our first post in this series), there is currently uncertainty as to whether or not the applicable RO in Scotland would close in 2016. This is an important consideration regarding the possible impact of any proposed measures.

It is unclear whether there would be a ‘grace period’ in relation to the changes, which could enable projects that already have planning permission to be included under the RO scheme, and closing the RO for those that do not. Ian Marchant, chairman of wind developer Infinis Energy, said: “The Government’s alleged plans to close down the Renewable Obligation-regime early for onshore wind beggar belief. . . . If the RO is terminated early without reasonable grace periods in place, not a single energy or large scale infrastructure project in the UK will be safe going forward.

The potential impact of such measures is giving rise to considerable uncertainty and concern over the future of the onshore wind industry. In our final post in this series, we will consider what action could be taken by industry participants who may be affected by the early closure of the RO.

The Uncertain Future of the UK Renewables Obligation: A Three-Part Series

Posted in Renewables

In early June 2015, the UK Department for Energy & Climate Change (“DECC”) was expected to announce plans to close the existing subsidy scheme for onshore wind, the Renewables Obligation (“RO”), to new generating capacity a year earlier than expected. This announcement has been delayed amid concerns that it could spark potential legal challenges from the industry and lead to a dispute with the Scottish Government over the future of onshore wind.

In this three-part series, we outline how the RO operates, the potential impact of the early closure of the RO upon the onshore wind industry, and the possible routes for challenge and redress for industry participants who may be affected.

Part One: An Overview of the Renewables Obligation and Plans for Its Early Closure

How does the RO operate?

The RO is designed to support renewable electricity projects in the UK. It obliges UK electricity suppliers to source a proportion of the electricity that they supply to customers from eligible renewable sources. The RO is currently set to close to all new generating capacity of any technology on 31 March 2017.

Ofgem, which administers the scheme, issues Renewable Obligation Certificates (“ROCs”) to electricity generators for the eligible renewable electricity they generate.  The ROCs are sold, either directly or indirectly, to electricity suppliers, who can use the ROCs to demonstrate their compliance with their annual obligations (i.e., “redeem” the ROCs against their RO). If a supplier does not present sufficient ROCs to meet its RO, it must pay a penalty known as the buy-out price. The funds collected by Ofgem from the buy-out price are redistributed on a pro-rata basis to suppliers who redeem ROCs.

What are the proposed changes to the RO?

Before winning the UK general election, the Conservative party pledged that it would end “any new public subsidies” for onshore wind farms on the basis that they “often fail to win public support and are unable by themselves to provide the firm capacity that a stable energy system requires”.

DECC is expected announce that it will close the RO to new generating capacity in April 2016, instead of April 2017. Such a move has been described as “going further” than the Conservative party’s pre-election pledge, by ending an existing subsidy a year earlier than expected. At present, DECC has reportedly declined to confirm the precise nature of the proposals.

The majority Conservative Government disclosed in late May 2015 that it would “be announcing measures to deliver this soon”, after conducting a consultation with the devolved administrations (Scotland and Northern Ireland) over the nature of the changes. However, at the time of writing, an announcement has not yet been made.

The basis for delaying the announcement of these measures appears to be twofold.

First, the Conservative Prime Minister, David Cameron, and Scottish First Minister and SNP leader, Nicola Sturgeon, have opposing opinions over the future of onshore wind. While Cameron has stated that “enough is enough” for onshore wind subsidies,  Sturgeon has demanded a veto on the Conservative’s plans. Energy Minster Amber Rudd stated that the consultation with devolved authorities would continue “until we have arrived at a firm policy”, and MPs would have to “bear with us a little longer”.

Second, trade bodies representing the onshore wind industry have vocally opposed the Conservative’s plans, due to their potentially significant effect on the future of onshore wind in the UK. The possible impact on the industry is considered in part two of this series.

Cybersecurity Discussions at the 2015 G-7 Summit

Posted in Electricity

On Monday, the 2015 G-7 Summit ended with the President and other Leaders of the G-7 focused generally on a wide range of economic, security, and development issues, and specifically discussing the energy sector’s cybersecurity posture.  According to the White House, the Leaders “launched a new cooperative effort to enhance cybersecurity of the energy sector . . . [to] include analysis of different approached across the G-7; exchange of methodologies for identifying cyber threats, vulnerabilities, and best practices; and investment in cybersecurity capabilities and capacity building.”

The G-7’s international effort appears to model the ongoing U.S. domestic efforts to protect the electric grid.  In the United States, the electric grid relies inextricably upon its key sector stakeholders to deliver essential services, and each of them have substantial networked information systems that must remain interconnected, from industrial controls within the power generation facilities to the sensors found in energy delivery systems.  Since 1998, the Electricity Sector Information Sharing and Analysis Center (“ES-ISAC”) has served the energy sector by providing a platform for industry participants, the federal government, and other critical infrastructures to share cybersecurity information.  The ES-ISAC share “threat indications, analyses and warnings, and interpretations to assist industry in taking protective actions.”  The goal of the ES-ISAC and its participating members is to share such information that could help prevent cyber-related incidents, and it appears the Leaders of the G-7 hope to accomplish the same for their countries.

EPA to Hold Public Meeting on Nanoscale Materials Proposed Rule

Posted in EPA

EPA has scheduled a stakeholder meeting in Washington, D.C. on June 11 to discuss its proposed nanoscale materials rule under the Toxic Substances Control Act (TSCA).  The proposed rule would require manufacturers of nanoscale materials to provide EPA certain information, including health and safety-related information, regarding their nanoscale materials.  Public comments are due by July 6, 2015.  EPA’s proposed rule is significant in part because EPA intends to use the information gathered under the proposed rule to determine whether to take further action under TSCA regarding nanoscale substances.

EPA issued its proposed rule on April 6, 2015.  The rule would require entities that manufactured nanoscale substances during the three years prior to the rule to provide the required information to EPA within six months after the rule is finalized.  EPA also proposes a continuing requirement that manufacturers who begin to produce nanoscale materials after the date of the rule provide the same information to EPA at least 135 days before they commence manufacturing.  The information required to be reported to EPA includes chemical identity, production volume, methods of manufacture, exposure and release information, and health and safety information.

Information gathered through this proposed reporting rule will be used to “determine if any further action under TSCA,” such as additional information collection or regulation, is necessary.  EPA has requested comments on a number of aspects of the proposed rule, including regarding a potential future rule that would require regular, periodic reporting of the manufacture of nanoscale substances, and has invited participants at the upcoming stakeholder meeting to provide input on these issues.

The proposed rule recognizes that nanoscale materials have “a range of potentially beneficial” applications, such as “clean energy, pollution reduction and environmental cleanup,” but also states that nanomaterials can raise “questions” as to whether the material can “present increased hazards to humans and the environment.”  That a material is nanoscale is not “an indication of, or criterion for, hazard or exposure potential,” that the proposal does not make any finding about the potential risks of nanoscale material, and that all evaluations of nanomaterials “will be based on the specific nanoscale chemical substance’s own properties.”   Nevertheless, an underlying premise of EPA’s rulemaking efforts is that nanoscale substances may have significantly different characteristics from the same substances on a more conventional scale.

U.S. Appeals Court Rejects, as Premature, Challenge to EPA’s Clean Power Plan

Posted in EPA

Today, the United States Court of Appeals for the District of Columbia Circuit refused to review challenges of EPA’s authority to adopt comprehensive regulations of carbon emissions from exiting power plants.  A coal company, joined by 12 States, had asked the Court of Appeals to prohibit EPA from finalizing its Clean Power Plan on multiple theories that the proposed rules exceeded EPA’s authority under a rarely used provision of the Clean Air Act, referred to as Section 111(d).  However, the Court of Appeals ruled that it had no authority to review the legality of proposed EPA rules, and that judicial review of the Clean Power Plan must await the issuance of a final rule, which EPA has announced is expected this summer.

Newspaper headlines may describe this as a victory for EPA, and it is, but only a temporary one.  All of the issues raised by the challengers and many more will be ripe for judicial review as soon as the ink is dry on the final Clean Power Plan rules.  Today’s decision gives not a hint of how the panel of judges would have ruled on the merits of the claims that EPA has exceeded its authority under Section 111(d) the Clean Air Act in crafting the complex Clean Power Plan.

The Road to Paris 2015: The G7 Declaration on Climate Change — Will It Make a Difference?

Posted in COP21 - The Road to Paris 2015

Climate change was high in the agenda of the G7 Summit that concluded in Germany yesterday.  After years of failing to agree on a binding global action plan to limit the impact of climate change, the seven most industrialized countries of the world expressed their strong determination to reach a deal at the COP 21 of the UNFCCC in Paris in December 2015 and emphasized the need for “deep cuts in global greenhouse emissions” and “a decarbonization of the global economy over the course of this century.”

The G7 Declaration reaffirms a commitment to limit the increase of global average temperatures below 2 ºC, as agreed in the Copenhagen Accord, and supports the principle that all UNFCCC parties should share the goal of reducing greenhouse gas emissions by 40% to 70% by 2050, compared to 2010 levels.  The G7 participants agreed that to achieve these objectives the UNFCCC COP 21 should result in a binding instrument that applies to all UNFCCC parties, while reflecting evolving national circumstances.

The G7 participants also expressed their commitment to achieve a low-carbon global economy by developing and deploying innovative technologies, transforming the different energy sectors by 2050, eliminating inefficient fossil fuel subsidies, and continuing efforts to phase down hydro fluorocarbons.  The participants also committed to apply effective policies and actions to incentivize investments towards low-carbon growth opportunities, including carbon marketed-based and regulatory instruments.

Importantly, the G7 Declaration also expresses a strong commitment to mobilize jointly USD 100 billion a year by 2020 to finance meaningful climate change mitigation actions.  The Declaration recognizes the potential of multilateral development banks and of private sector capital to achieve this financial goals, unlock the required investments in low-carbon technologies, and adapt to climate change.  In particular, the G7 participants pledged to increase the number of people in vulnerable developing countries that have access to insurance coverage against the impact of climate change, and to accelerate access to renewable energy in Africa and developing countries in other regions.

To date, all of the G7 participants but Japan have submitted their intended nationally determined contributions (INDCs) to the UNFCCC COP 21.  However, while Germany reaffirmed its ambition of having no emissions from fossil fuels by 2100, it is still unclear whether the U.S. and EU will be capable of adopting the painful measures that are necessary to achieve “a decarbonization of the global economy over the course of this century.”  It remains to be seen whether President Obama and the next U.S. President will be able to convince a reluctant U.S. Congress, and whether the current European Commission can ensure that EU Member States adopt the necessary measures, to force the reduction of greenhouse gas emissions and create the necessary incentives for renewable energies, energy efficiency and other clean technologies.

Pedro Mendez de Vigo is a Covington summer legal trainee from the Universidad Autónoma de Madrid.