Transcript The Energy Act Policy of 2005: A Comprehensive Overview

GHG LITIGATION
Peter Glaser
Climate Challenges in the Sunshine State
Orlando, FL
February 13, 2008
Litigation Issues
• EPA/CAA – “Endangerment” and CAA
Regulation?
• PSD Morass
• Tort Lawsuits
• Will Anyone Challenge State GHG Regulatory
Efforts?
• Financial Disclosure Issues
• Other Issues
Are GHGs a CAA Pollutant?
• Supreme Court: 5-4 Yes
• Statute: broad definition of “air pollutant” and “air
pollution”
• Ruling does not mandate regulation
• Remand: Endangerment
• Discretion
- May EPA consider factors other than science?
- Scrutiny on scientific findings
Context – Not Just About Autos
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NSPS: New York v. EPA Remand
Other Petitions/NSPS
NAAQS?
PSD Context – Motor Vehicle CO2 Regulation Will Make
CO2 a Regulated NSR Pollutant
- Any new source emitting more than 100/250 tpy CO2
must obtain a PSD permit
- Any existing source emitting more than 100/250 tpy CO2
making a modification increasing CO2 emissions by ANY
amount must obtain a PSD permit
Where Things Stand
• Enactment of Energy Bill
• Denial of CA Waiver
• Intense Lobbying on PSD Impacts
• What Will EPA Do Next – and Is There Time?
PSD MORASS – IS CO2 ALREADY A
REGULATED POLLUTANT?
• EAB Cases
• State PSD Cases
• Sunflower – State law
• Settlements - Duke
TORT LIABILITY? NOT YET
• NY: 8 States sue 5 utilities over GHG emissions
from powerplants in 20 states – seeks injunction case dismissed – appellate decision expected
shortly
• MS: Individual property owners sue large number
of energy/chemical companies alleging GHGs
exacerbated Katrina – sought damages – case
dismissed 8/30/07 – on appeal
• CA – AG sues autos – seeks damages – case
dismissed 9/17/07
BASIS FOR DECISION: POLITICAL
QUESTION
“While at times, some judges have become involved
with the most critical issues affecting America,
political questions are not the proper domain of
judges.”
WILL ANYONE CHALLENGE STATE GHG
REGULATORY EFFORTS?
• State Electricity Import Bans
• State GHG Requirements
• Interstate Compacts
GHG FINANCIAL DISCLOSURE
• 9/14/07 NY AG Cuomo issues subpoenas
against 5 energy companies seeking
information on companies’ potential
financial liabilities from GHG emissions and
whether they have been adequately
disclosed
• Implies failure to adequately disclose could
be violation of NY law as misrepresentation
or fraud
SEC PETITION
• 9/18/07 – Large institutional investors, state AGs, 11 state
pension funds, environmental groups
• Seeks: “Interpretive guidance clarifying registrants’
obligation under existing regulations to disclose material
information concerning the effect of climate change and
regulation of greenhouse gas emissions upon their
financial condition and business operations.”
• Also seeks immediate review of adequacy of climate
change risk disclosures for companies filing 10-Ks and 10Qs.
OTHER
• Extent to which global warming should be considered in
EIS
• Rural Utilities Service
• Endangered Species
• Auto State Litigation
Peter Glaser
Troutman Sanders
401 9th Street, N.W., #1000
Washington, D.C. 20004
202-274-2998
[email protected]