Environmental Lawyer Blog

Top Kill

Thu, 27 May 2010 16:15:36 -0800

Shortly after the preceding blog entry was posted, President Barrack Obama announced that he was suspending exploration of two locations off the coast of Alaska and suspending for six months the issuance of new permits to drill deepwater wells. He also noted that current laws and practices do not ensure “adequate environmental review” and invited Congress to work with his administration to “address these issues as soon as possible.”

Are Current Judicial “Blowout Preventers” Sufficient?

Thu, 27 May 2010 09:07:17 -0800

By GARRETT L. HANKEN

As a BP oil well in the Gulf of Mexico continues to prove, at the rate of thousands of barrels of oil per day, that modern technology is no fail-safe against disastrous environmental mishaps, it provides a metaphor for a risk of malfunction in the legal system on which the public also depends to prevent such disasters. The ongoing massive leak in the Gulf of Mexico is the result of the failure of a series of human and technological safeguards intended to prevent uncontrolled releases of oil and gas from occurring. The final element in that series of protections is a mechanical device known as a blowout preventer, a device designed to detect a leak and automatically plug the oil well to stop further release of oil and gas. In the Gulf of Mexico, the well’s blowout preventer should have triggered and clamped the wellhead closed. It failed for reasons apparently not yet known.

The public depends on a similar system of safeguards to prevent approval of drilling permits that do not incorporate adequate protections against the risks of environmental disasters like that in the Gulf of Mexico. The public looks primarily to legislation and governmental administrative agencies for protection against environmental mishaps caused by large companies’ zealous efforts to bring natural resources to market. For offshore drilling, the Minerals Management Service of the United States Department of the Interior has primary responsibility for environmental review. When it fails, the public looks to the courts as the legal equivalent of a “blowout preventer.” The courts are supposed to detect a failure in the administrative process and stop a project before an inadequately addressed environmental risk is realized.

Timing and Incentives Differentiate Senate and House Climate Bills

Wed, 19 May 2010 14:14:14 -0800

By CHRISTOPHER G. FOSTER

Although Senators Kerry (D-MA) and Lieberman’s (I-CT) recently released American Power Act and the American Clean Energy and Security Act, passed by the House in June 2009, call for identical reductions in greenhouse gas (GHG) emissions of 17% below 2005 levels by 2020 and 83% below those levels by 2050, they differ in several important respects:

The American Power Act begins regulating GHG emissions from electric utilities, transportation fuels and refined oil products in 2013. The regulatory scheme expands in 2016 to include large industrial sources and natural gas distributors. Conversely, the House bill would begin regulating electricity production, transportation fuels, and refined oil products in 2012 and add industrial sources in 2014.

The Race to Regulate Greenhouse Gases

Fri, 14 May 2010 09:17:15 -0800

By SEDINA L. BANKS

It has been an exciting week for the regulation of greenhouse gas emissions with the unveiling of Senator Kerry and Lieberman’s energy and climate change legislation and the Environmental Protection Agency’s (EPA) plans to regulate greenhouse gases. However, Congress’s emergence in the regulation of greenhouse gases may preempt the steps California has already taken and limit EPA’s regulatory authority.

On May 12, 2010, Senators John F. Kerry, Democrat of Massachusetts and Joseph I. Lieberman, Independent of Connecticut, released the long-delayed climate change bill to address greenhouse gases. The energy and climate change legislation, entitled the “American Power Act,” seeks to reduce greenhouse gas emissions by 17 percent from 2005 levels by 2020 and 83 percent by 2050. The just under 1,000 page legislation includes plans for the use of domestic clean energy, plans for the reduction of greenhouse gas emissions and a federal cap-and-trade program, among other provisions. The introduction of this bill is the Senate’s equivalent to the House’s climate change legislation, entitled the American Clean Energy and Security Act, which the House passed in June 2009.

Coastal Senators Seek Increased Liability for Oil Spills

Fri, 07 May 2010 13:24:50 -0800

By CHRISTOPHER G. FOSTER

In the wake of the massive Gulf Coast oil spill, three coastal Senators have introduced legislation entitled the “Big Oil Bailout Prevention Act.” The bill was introduced on May 3, 2010 by Senators Robert Menendez (D - NJ), Frank Lautenberg (D - NJ), and Bill Nelson (D - FL).

Under the current law, the Oil Pollution Act of 1990, liability for economic damages, such as lost business revenues from fishing and tourism, resulting from an oil spill is capped at $75 million, although unlimited damages are available in certain situations, such as a finding that the operator was grossly negligent or violated federal laws or regulations. Once that cap is reached, claimants can seek reimbursement from the Oil Spill Liability Trust Fund, which was created through a tax on produced and imported oil.

Reid - Graham Standoff Continues on Senate Climate Change Legislation

Wed, 05 May 2010 14:11:20 -0800

By CHRISTOPHER G. FOSTER

The Kerry-Lieberman-Graham Senate climate change bill that was scheduled for a public unveiling on April 26, 2010 remains under wraps. Days before its scheduled introduction, Sen. Graham (R-SC) withdrew his support for the legislation he had been working on with Senators Kerry (D - MA) and Lieberman (I - CT) for months. Graham’s action was the result of Majority Leader Harry Reid’s (D - NV) failure to assure him that the Senate would not begin consideration of an immigration reform bill before or at the same time the global warming and energy legislation undergoes floor debate. The Kerry-Lieberman-Graham bill is thought to contain more incentives for industry than the bill passed by the House earlier this year, such as increased funding for oil exploration and nuclear energy and a preemption on states’ and EPA’s ability to regulate greenhouse gases under the Clean Air Act.

Public Hearing Held Today on EPA’s Proposed Rule to Require Petroleum and Natural Gas Facilities to Report GHG Emissions

Mon, 19 Apr 2010 11:51:19 -0800

By SEDINA L. BANKS

In March, we reported that the EPA signed a proposed rule that will require petroleum and natural gas facilities emitting 25,000 metric tons of carbon dioxide equivalent or more to report GHG emissions including methane, carbon dioxide and nitrous oxide. [Click here to read prior post on this issue] EPA will hold public hearings today on the proposed rule.

Greenberg Glusker Environmental Litigation Team Wins Court Affirmation of Culver City Moratorium on New Oil Well Drilling By PXP

Thu, 01 Apr 2010 11:36:28 -0800

By GREENBERG GLUSKER

Rights of Old Oil Do Not Trump Needs of New Residents; Related CEQA Lawsuit Against LA County Set for April 5th Trial

Greenberg Glusker today announced that the Los Angeles Superior Court has upheld the right of its client, the City of Culver City, California, to regulate expansion and intensification of new oil well drilling in order to protect its residents. In an order issued March 26, 2010, Judge James Chalfant rejected a challenge by an oil company, Plains Exploration & Production Company (PXP), which sought a writ of mandate invaliding the City’s moratorium on new drilling.

EPA Proposes to Require Petroleum and Natural Gas Facilities To Report GHG Emissions

Mon, 22 Mar 2010 11:54:11 -0800

By SEDINA L. BANKS

On March 22, 2010, EPA signed a proposed rulemaking that would require petroleum and natural gas facilities emitting 25,000 metric tons of carbon dioxide equivalent or more to report GHG emissions including methane, carbon dioxide and nitrous oxide. The proposed rule amends the GHG Mandatory Reporting Rule that was issued on October 30, 2009, which excluded the petroleum and natural gas facilities from the reporting requirements pending further study.

California Supreme Court Rules that Air District Must Use Existing Conditions as the Baseline for Environmental Review

Mon, 15 Mar 2010 11:43:07 -0800

By SEDINA L. BANKS

On March 15, the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District ruled that the South Coast Air Quality Management District violated the California Environmental Quality Act or CEQA when it failed to prepare an environmental impact report before approving a major refinery project in the Los Angeles area. (Read the case here.)

The closely-watched decision was important because it established that a project’s environmental impacts should be assessed by comparing the potential impacts to existing conditions, instead of the maximum permitted conditions. The court also found that even if a project proponent has a “vested right” to continue its operations at a certain level, CEQA requires the public agency to still consider the project’s true impacts.

PG&E to Miss Renewable Power Goals

Thu, 04 Mar 2010 10:16:33 -0800

Although not wholly unexpected, Pacific Gas & Electric Co. will not meet the renewable power mandates required under California Law this year, according to a March 1 article by the San Francisco Business Times. While PG&E will come close, it expects only 17 to 19 percent of its electricity will come from renewable sources in 2010 -- just short of the 20 percent target required under the law. (Click here to read.)

Interestingly, PG&E gets at least 51 percent of its power from no-emissions hydroelectric and nuclear power sources, but unlike wind and solar power facilities those sources aren't considered renewable under California law.

PG&E officials echo complaints heard throughout the industry that a weak climate for financing these projects and long permitting odysseys have prevented further development of wind, solar and biomass projects. Even so, the amount of renewable power coming from these generation sources have risen steadily in the past years.

Green Leases Draw Attention and Investors

Thu, 04 Mar 2010 09:32:28 -0800

By ROGER J. HOLT

A story from the New York Times, published March 3rd underscores what we have been saying for over a year: green leases -- or commercial leases that draw on the benefits of sustainability -- are attracting the attention of both tenants and investors.

The story, "Seeing the Investor Value in Being Green," reports that a German real estate investment company, Jamestown Properties, has proclaimed that it will go "green" in its entire $4 billion portfolio of buildings here in the U.S. According to the New York Times, Jamestown will overhaul its existing properties by installing low-flow water fixtures and better lighting, by revamping heating, ventilation and air conditioning systems, and even by adding bike-share stations to some of its buildings. Jamestown expects to spend between $3 million and $10 million to retrofit its properties, the Times reported. (Click here to read the article.)

LA Mayor Promotes Carbon Surcharge for Utility Customers

Mon, 01 Mar 2010 09:12:44 -0800

On February 28, the Los Angeles Times reported that Mayor Antonio Villaraigosa has recommended a "carbon surcharge" to help the Los Angeles Department of Water and Power seek new renewable energy sources. The proposed fee, which could amount to $2.50 per consumer, would help the utility pursue new solar, wind, biomass and geothermal sources, he said. The fee, according to Villaraigosa, would also make it easier for the utility to meet its mandated goal of using at least 20 percent renewable energy sources by the end of this year. So far, it appears the utility will not meet that goal by December 31, according to the Times. (To read click here.)

The proposal is controversial because some critics say that with Los Angeles facing a $484 million budget deficit this year and with the potential for layoffs and huge cuts to city services, it's not a good time to charge consumers for new services -- no matter how well intentioned. But Villaraigosa contends that a majority of citizens (64 percent) in a recent poll agree with the proposed surcharge and would welcome it.

What to do with Superfund, Brownfield Sites? EPA has an answer

Sat, 20 Feb 2010 10:04:23 -0800

Landowners, some reeling after years of costly regulatory scrutiny and enforcement actions, often find themselves at a loss with what to do with Superfund sites, brownfields and former landfills and tapped-out mines. Well, on Feb. 23, the U.S. Environmental Protection Agency offered at least one possible solution: develop renewable energy facilities on these tainted lands. (Click here to read.)

The idea would appear to appeal to landowners stuck with contaminated property they can not otherwise develop, and to green energy advocates who are constantly seeking new, easily developed spots for their solar, wind and biomass projects. Often the latter face a long and excruciated permit process. So is the EPA killing two birds with one stone? Perhaps.

EPA Issues Major New Rules for Stationary Diesel Engines

Tue, 16 Feb 2010 09:21:55 -0800

By JENNA GUGGENHEIM

On Feb. 17, the U.S. Environmental Protection Agency issued the first new emission guidelines for stationary diesel engines. The final rules, which were years in the making and closely watched by the industry, may affect as many as 900,000 small diesel engines used primarily in agricultural and industrial activities to generate electricity for compressors and pumps.

According to the EPA, the new rules are designed to cut toxic emissions and safeguard public health by cutting down on heart attacks, asthma and respiratory diseases caused by diesel engine emissions. Specifically, the rules seek to cut emissions of formaldehyde, benzene, acrolein and other air pollutants suspected to cause cancer and other health problems.