Some lawyers say there is no harm in piling on when adding causes of action to a law suit. Assuming the claims are defensible, this may be true. Opponents of the Environmental Protection Agency’s (“EPA” or “Agency”) Clean Power Plan (“Rule”), however, seem to believe that their suit chock-full of legal challenges may be hindering their efforts to receive an expeditious ruling.
Yesterday, the group of 27 states, utilities, trade groups and unions, filed a motion with the federal Court of Appeals for the District of Columbia Circuit requesting that the Court “bifurcate the briefing between the fundamental legal issues and individual record-based challenges.”
Count Maine “in” as one of the 18 states filing a motion to intervene to defend the federal Environmental Protection Agency’s (“EPA” or “Agency”) Clean Power Plan (“Rule”). A coalition including 24 states wasted little time filing suit against the much-anticipated final Rule after it was posted in the Federal Register on October 23. The coalition alleges that the Rule is an overreach of the authority delegated to the Agency by Congress and more specifically, Section 111(d) of the Clean Air Act cannot be used to regulate greenhouse gases. The petitioners are asking the court to stay the Rule while the suit is pending and ultimately, invalidate it as ultra vires.
In a recent decision by a California Appeals court, the appellant, (Our Children’s Earth Foundation; (Appellant)), challenged the State Air Resources Board’s (Board) use of carbon offsets within its Cap-and-Trade program and more specifically, its method for establishing that the offsets achieve the requirement of “additionality.” That’s a loaded sentence so let’s start from the top.
In a sophisticated Cap-and-Trade system like California’s, regulated entities are given a number of options for meeting emission reductions targets. Offsets are one such option. Instead of undertaking on-site emission reduction projects within the emissions cap, emitters may choose to purchase emissions reduction credits generated by projects undertaken outside of the emissions cap. The design of such policy works because emissions—regardless of whether they are released by a coal-fired power plant in Ohio or through the cutting of timber in Indonesia—all enter the same global atmosphere. Therefore, a reduction of emissions made by a wind turbine in Maine can be equivalent in global climate impact to emission reductions made by a solar array in Arizona. Because of this, a power plant in California could chose to purchase emissions reduction credits from an afforestation project in Massachusetts, while maintaining the integrity of the emissions cap based in its home state. But the catch is that the carbon reduction represented by each offset credit must have integrity. And that’s the heart of this suit.
The big news out of Beijing today is that President Obama and Chinese President Xi Jinping have reached an agreement on reducing greenhouse gas emissions for both nations. The agreement is likely more significant in form than in substance.
The announcement includes the following targets:
- China has agreed to reach peak carbon emissions by 2030 (or sooner) and aims to have 20% of its power generated by non-fossil fuel sources by the same date.
- The U.S. has agreed to ratchet up its current emission target from 17% below 2005 levels by 2020 to 26-28% below 2005 levels by 2025.