This month, situated among foldable tablet computers and flying taxis, the U.S. Secretary for Transportation, Elaine Chao, unveiled at the Consumer Electronics Show (“CES”) the U.S. Department of Transportation’s (“DOT”) long-anticipated fourth round of automated vehicles guidance, “AV 4.0.” Formally entitled, “Ensuring American Leadership in Automated Vehicle Technologies,” AV 4.0 is less regulatory guidance and more regulatory aggregator. The document lists in great detail the various Administration efforts—across 38 federal departments and agencies—geared toward promoting, supporting, and providing accountability for users and communities with respect to autonomous mobility.
The Dutch Supreme Court holds that the Netherlands Has a Human Rights Obligation to Mitigate Climate Change: The Urgenda Case
On December 20, 2019, the Supreme Court of the Netherlands confirmed the judgements of a District Court and an Appeal Court requiring the Dutch Government to achieve a reduction of greenhouse gas (“GHG”) emissions of 25% by 2020 compared to 1990, instead of the 20% reduction that the government had envisioned since 2011. The case was brought by the Urgenda Foundation — a Dutch NGO — and has resulted in a landmark decision that may influence climate change litigation in other countries across Europe, such as the lawsuit filed by NGOs in Germany on January 15, 2020.
Environmental and Safety Requirements Affecting the Marketing of Electronic Devices and their Components in the European Union and European Economic Area
Electronic devices and their components marketed in the European Union and European Economic Area are subject to a morass of environmental and product safety requirements that is only likely to increase with the EU’s implementation of its Circular Economy Strategy in the near future. The requirements apply to all types of equipment, from sophisticated information technology equipment, to military equipment, aircraft components, electronic medical devices, household electronics, consumer devices, and industrial tools. Continue Reading
South Africa Prepares for a Battery Energy Storage System Tender
In a project that the World Bank hopes will be a catalyst for implementing its climate change strategy in low and middle-income countries, Eskom, South Africa’s 100% state-owned electricity utility, will launch a tender for a 1.4 gigawatt-hours battery energy storage system (“BESS”). The tender will likely be issued in the first or second quarter of 2020, pending final governmental approval. The completed BESS will have a daily capacity of 1.4 gigawatt-hours of energy output (which is sufficient energy to power 1.4 million homes for an hour). The project is the first of its kind on the African continent. Continue Reading
FERC Approves Electric Storage Resource Practices in Two Regions
As described previously in this blog, FERC in 2018 adopted a rule aimed at clearing away obstacles to participation by electric storage resources in wholesale markets administered by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs).[1] FERC has issued orders addressing the compliance filings of two RTOs: the PJM Interconnection (PJM) and Southwest Power Pool (SPP). The FERC compliance orders will be of keen interest to storage resources and other market participants in PJM and SPP. Continue Reading
CARB Continues Global Leadership Role on Climate with Adoption of Tropical Forest Standard
After nearly a decade of work, on September 19, 2019, the California Air Resources Board (CARB) endorsed its much anticipated Tropical Forest Standard (TFS). The TFS is a first-of-its-kind framework for assessing jurisdiction-scale offset credit programs that reduce emissions from tropical deforestation and degradation. It is widely expected to serve as a replicable model for adoption by other international greenhouse gas mitigation programs that utilize tropical forest reductions as offsets, including the International Civil Aviation Organization (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).
The TFS framework ensures that reductions produced by a subnational jurisdiction’s systemic efforts to conserve its tropical forests are real, quantifiable, permanent, additional and enforceable – the hallmark criteria to ensure the environmental integrity of offset credits within emissions trading schemes, such as California’s Cap-and-Trade Program. It requires rigorous, independent third-party verification of both the emissions avoided by the jurisdictional plan and the jurisdiction’s adherence to social and environmental safeguards designed to protect indigenous communities.
Under the TFS, subnational jurisdictions wanting to issue offset credits for their overall forest conservation efforts must adhere to guiding principles endorsed by indigenous community leaders and state and regional governments whose territories include more than one-third of the world’s tropical forests. These principles mandate that indigenous communities are involved in plan development and implementation and share in the resulting economic benefits.
CARB’s endorsement of the TFS does not authorize emitters to use tropical forest offsets for compliance with its Cap-and-Trade Program at this time; CARB would need to amend its regulation to authorize such use and has no immediate plan to do so. Advocates for indigenous communities and environmental justice nevertheless opposed CARB’s action, arguing that it made it all but inevitable that CARB would soon adopt such an amendment and that doing so would allow emitters to continue emitting and consuming fossil fuels in California.
Against such opposition, leading scientists and environmental groups strongly supported CARB’s endorsement of the TFS as a critical near-term step to slow the loss of tropical forests and limit global warming to no more than two degrees Celsius. According to a recent estimate, tropical deforestation now amounts to more emissions each year than 85 million cars over their entire lifetime, dwarfing California’s own anthropogenic emissions and those of all nations but the U.S. and China. As a consequence, no serious effort to mitigate climate change can exclude measures to avoid continued deforestation and degradation of tropical forests.
CARB’s action comes at a timely moment, as the impacts of climate change and slash-and-burn agriculture are resulting in an unprecedented surge in uncontrolled fires throughout the Amazon rainforest. Although the political situation in Brazil may make it difficult to crack down on illegal burning and deforestation, CARB’s adoption of the TFS may amount to one small step towards counterbalancing the incentives that promote deforestation.
FERC Proposes Changes To PURPA Rules
The FERC recently issued a Notice of Proposed Rulemaking (NOPR) to reform its regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA), which encourages the development of certain small generation and cogeneration facilities. PURPA and FERC’s rules implementing it over the years establish a number of benefits to those facilities and set obligations for electric utilities to purchase electricity from them. FERC now concludes that, due to changes in the electric power industry over the last several decades, it is time to revise some of its PURPA rules. But FERC’s proposals are certain to be controversial. Notably, one of the three FERC Commissioners dissented from the NOPR.
The NOPR should be of interest to a wide range of electricity market participants, including utilities and investors in cogeneration and certain types of small scale generation facilities. Continue Reading
The Environmental Protection Agency’s (EPA) Proposed Changes to State and Tribal Certification Authority under Clean Water Act Section 401
Companies seeking approval for pipelines got some encouraging news from a Trump Administration proposal to cut back on states’ authority to block pipelines by withholding state water quality approvals, but environmentalists and states continue to express skepticism and are likely to sue. On August 22, the EPA proposed its Updating Regulations on Water Quality Certification (“Proposed Rule”) to replace and update the existing water quality certification process under Section 401 of the Clean Water Act (“CWA”). The EPA’s Proposed Rule comes in response to Executive Order 13868, Promoting Energy Infrastructure and Economic Growth, issued on April 10, 2019 to “reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.” To ensure “the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce,” the Administration directed the EPA to update Section 401 for purposes of achieving a more “efficient permitting process.” Continue Reading
FERC Lowers Regulatory Burdens for Electricity Sellers in RTO/ISO Markets
FERC has streamlined its rules so that generators in the organized markets operated by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) no longer need to demonstrate a lack of horizontal market power in order to charge flexible market-based rates. Instead, FERC will rely on existing market monitoring and mitigation measures in place in those markets to guard against exercises of market power. This rule will be of interest to power generators; it will significantly simplify the market power filings required of generating resources in RTO/ISO markets.
The new rule was proposed earlier this year, as described in a post on this blog. FERC adopted the rule as proposed but made a few minor clarifications. Continue Reading
Kisor v. Wilkie Creates Significant Uncertainties Regarding Deference to EPA
The Supreme Court’s much-awaited decision in Kisor v. Wilkie will have significant ramifications for the Environmental Protection Agency (“EPA”) and environmental law. While the decision upheld the concept of Auer deference, which instructs courts to defer to agencies’ interpretations of their own regulations, it also imposed a number of limitations and restrictions on when Auer deference applies. The decision leaves open many questions about what EPA guidance will qualify for Auer deference, and whether any statements that do qualify for deference are subject to immediate challenge as final agency action. The decision thus presents opportunities for regulated parties to challenge EPA interpretations, but also challenges in that regulated parties may not necessarily rely on EPA’s interpretations as controlling. Continue Reading
