Led by New York, a group of twelve states and two cities filed suit yesterday against the EPA in the federal Circuit Court in Washington, DC.

The suit revolves around the New Source Performance Standards (NSPS), a set of federal regulations that create technology-based emissions limits for a variety of large industries.  EPA issued an updated NSPS for petroleum refineries in June 2008, but the rules do not require refineries to install equipment aimed at reducing greenhouse gas (GHG) emissions.  Instead, the new NSPS focuses on “traditional” air pollutants:  nitrogen oxides, sulfur dioxide, and particulate matter.  The suit argues that omitting GHG emissions from the NSPS violated the Clean Air Act.

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The Georgia Court of Appeals will hear an appeal of a lower court’s decision revoking an air quality permit for construction of a coal-fired power plant on grounds the state permit failed to control CO2 emissions.  The Court granted review on August 20 based on a request made by the State and supporters of the Longleaf Energy Station in Early County, Georgia.

Superior Court Judge Thelma Wyatt Cummings Moore revoked Longleaf Energy Station’s state air quality permit just last month on grounds the permit must “identify, evaluate, or apply available technologies that would control CO2 emissions” at the plant.  Citing the 2007 Supreme Court decision in Massachusetts v. EPA, Judge Moore wrote that “there is no question that CO2 is ‘subject to regulation under the [Clean Air] Act’” (CAA).

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The EPA’s most recent permit approval for construction of a coal-fired power plant is being challenged on climate change grounds. In the third challenge of its kind, opponents of a proposed 1,500-megawatt power plant on Navajo land in northwest New Mexico appealed the EPA’s decision to the Environmental Appeals Board (“EAB”) on grounds the permit violates Clean Air Act (”CAA”) standards for a number of pollutants, including CO2. The EAB heard oral arguments in two similar challenges and a decision in the precedent-setting In re Deseret Power case is expected from the EAB any day.

The CAA Prevention of Significant Deterioration (“PSD”) permit for the plant was issued after supporters of the facility filed suit arguing that EPA failed to act within the statutory 12-month window. The $3 billion project, which is financed by Sithe Global Power subsidiary Desert Rock Energy Company and the Navajo-owned Diné Power authority, has been held up since 2003. The proposal is opposed by environmental groups and New Mexico Governor Bill Richardson, who indicated that the state will join in the EAB appeal.

The appeal alleges that the EPA failed to analyze the impact of the plant on greenhouse gases or to require appropriate pollution control technologies. The EPA has consistently argued that CO2 is not subject to permitting restrictions until the agency makes an endangerment finding, which the agency is now considering as part of an Advanced Notice of Proposed Rulemaking. The EAB will rule on the legality of EPA’s argument in the In re Deseret Power decision, which is expected to have a widespread effect on pending challenges to coal-fired power plants.

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Last week, the Riverside County Superior Court invalidated an environmental impact report (EIR) for a 1,766-acre residential and commercial project that had been proposed for development in the northwest open space areas of Coachella Valley near Joshua Tree National Park in Southern California. The Court cited the EIR’s failure to analyze the project’s greenhouse gas (GHG) emissions and other climate change impacts. [Center for Biological Diversity, et al. v. City of Desert Hot Springs, et al. (Riverside County Superior Court - Case No. RIC 464585) (August 6, 2008)].

The Palmwood Project proposed nearly 2,700 homes, 1 million square feet of commercial space, a 400-unit hotel, a commercial amphitheater, and golf courses comprising 45 holes. Environmental groups Center for Biological Diversity and Sierra Club challenged the Project, arguing, inter alia, that respondent City of Desert Hot Springs’ failure to make a meaningful attempt to analyze the Project’s climate change impacts violated the California Environmental Quality Act (CEQA), the state version of the National Environmental Policy Act.

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Approximately 90 cities, 29 counties, and 20 towns across the United States have adopted some type of green building program.  So far, even what are considered the most aggressive green building codes, such Los Angeles’ and San Francisco’s, have not drawn any notable legal attacks.  On July 3, 2008, however, a group of national HVAC industry groups and local companies sued the City of Albuquerque, New Mexico, in federal district court to challenge two recently adopted green building city ordinances.

In 2007, the Albuquerque City Council unanimously adopted a High Performance Building Ordinance and a two-volume local Energy Conservation Code, which established air conditioner, furnace, heat pump, and water heater energy efficiency requirements that were more stringent the federal requirements.  For example, the new regulations would raise the standards for HVAC equipment in all new and retrofit commercial and residential projects to a Seasonal Energy Efficiency Ratio (SEER) of 15 for air conditioning and an Annual Fuel Utilization Efficiency (AFUE) of 90% for heating.  By comparison, the current U.S. Department of Energy (U.S. DOE) minimum standards for the same equipment are lower - at 13 SEER and 78% AFUE.

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Residents of a small Alaska village recently sued a group of large oil companies, electric utilities, and a coal company, alleging that the defendants’ greenhouse gas emissions are destroying the village.

The Inupiat village of Kivalina, home to roughly 400 people, is located “on the tip of a six-mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska, some seventy miles north of the Arctic Circle.” The suit contends that “[g]lobal warming is destroying Kivalina and the village thus must be relocated soon or be abandoned and cease to exist” as a result of the loss of arctic sea ice that protects the village from storms. The complaint estimates the cost of relocating the village to be from $95 million to $400 million.

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One year ago today, the Supreme Court issued a landmark decision in Massachusetts v. EPA, holding that “EPA has the statutory authority to regulate the emission of [greenhouse] gases from new motor vehicles.” The court ordered the agency to make a determination on whether greenhouse gases “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare” (quoting 42 U. S. C. §7521(a)(1)).

Since that decision, EPA has not issued its determination. As a result, Massachusetts - joined by a large group of states, cities, and environmental organizations - filed suit today against EPA in an attempt to force the agency to comply with the Supreme Court’s order.

The petition asks the Court of Appeals for the District of Columbia Circuit to issue a writ of mandamus “requiring EPA to issue within sixty days its determination on whether the air pollution to which greenhouse gas emissions from motor vehicles contribute ‘may reasonably be anticipated to endanger public health or welfare.” A writ of mandamus is “an extraordinary remedy reserved for extraordinary circumstances” but is argued to be appropriate here because the “agency’s unreasonable delay . . . signals the ‘breakdown of regulatory processes.’”

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The DC Circuit Court held oral arguments yesterday in State of North Carolina v. EPA, (No. 05-1244), a case challenging the EPA’s Clean Air Interstate Rule (CAIR). The CAIR program modifies the Title IV Acid Rain Program for 28 Midwestern and eastern states, establishing a cap-and-trade program to achieve reductions in sulfur dioxide and nitrogen oxide emissions from power plants.

CAIR requires that states cut sulfur dioxide (SO₂) emissions by an amount greater than required under the acid rain program, which also uses a cap-and-trade system. A potential consequence of mandating deeper emissions cuts is that the emissions allowances could lose their value due to excess supply in the market. CAIR addresses this situation by requiring emitters to surrender allowances at an accelerated rate. For example, if a state chose to regulate only electric generating units (EGUs), the surrender ratio will initially be two Title IV credits per ton of SO₂ emissions. If a facility had a 10,000 ton Title IV allowance, the facility would then be authorized to emit only half that amount - 5,000 tons and would be required to surrender the other 5000 credit tons, thereby preserving the value of other allowances.

Petitioners representing several states and industry parties claimed that this portion of the CAIR program violated the Clean Air Act (CAA), and that EPA did not have authority to change the allocation and surrender procedures specified in Title IV. Petitioners argued that Section 404 of the CAA specifies the initial allowance allocations for individual power plants. The petitioners, led by South Carolina Electric and Gas Co., argued that because Congress was so specific in establishing the program, EPA had no authority to change the allocation and surrender program.

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A federal court in California today issued a major ruling in the battle between states and the auto industry over who has the authority to regulate emissions from motor vehicles.

In Central Valley Chrysler-Jeep v. Goldstone, Judge Ishii of the Federal District Court for the Central District of California ordered that California may properly enact emissions regulations that are more strict than the federal fuel economy standards. The Plaintiffs, led by the Association of International Automobile Manufacturers, had argued that such regulations were pre-empted by federal law, specifically the Energy Policy and Conservation Act (EPCA). Read the rest of this entry »

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Seven states and the City of New York filed suit in July 2004 against the five electrical utility companies alleged to be the country’s largest emitters of carbon dioxide. In Connecticut v. American Electric Power, Inc., the plaintiffs alleged that the power plants’ carbon emissions cause a public nuisance by contributing to climate change.

Plaintiffs argue that “Defendants’ emissions of carbon dioxide, by contributing to global warming, constitute a substantial and unreasonable interference with public rights in the plaintiffs’ jurisdictions, including, inter alia, the right to public comfort and safety, the right to protection of vital natural resources and public property, and the right to use, enjoy, and preserve the aesthetic and ecological values of the natural world.” As relief, the plaintiffs sought an order capping and eventually reducing the emissions generated by defendants’ plants.

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