SCOTUS decision will determine the future of greenhouse gas regulation, Bodman attorney explains

By Frank Weir

Legal News

A relatively recent U.S. Supreme Court case may very well exert a profound influence on how greenhouse gas emissions are regulated far into the future.

So said James Roush, an attorney in Bodman's Ann Arbor office, who spoke to a meeting last week of the WCBA's Real Estate Section.

Roush cited Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), as "the number one environmental law case in history, according to most environmental law practitioners," Roush said.

"Its most important holding is that the Clean Air Act covers the regulation of greenhouse gas emissions (GHG) cases. The CAA uses the most expansive language there is and allows the EPA to regulate any gases that it defines as an 'endangerment' to human life.

"A second part of the holding empowered the EPA to establish a framework for determining how to regulate GHG under the Clean Air Act," Roush said.

He noted that it didn't take long after the ruling for the EPA to begin addressing GHG emissions.

"But it is a tricky question as to how the CAA will be used and as soon as the ruling came out, the EPA used it as justification to take a lot of action concerning emissions under the act.

"One of the most important early results of the ruling is the greenhouse gas reporting rule formulated by the EPA. It is now in effect and it specifies that if an entity produces more than 25 tons of carbon dioxide a year, they have to start keeping track of their greenhouse gas emissions and report them starting in 2011.

"The EPA estimates that 3,000 or more new entities will fall under the reporting rule and they could include large institutions that maintain power plants," Roush said.

"The trouble is that the CAA is not well suited for addressing climate change. It is not designed for a global problem that is not localized. It is aimed more at specific alternatives of how to regulate a specific plant, for instance."

Roush also touched on two federal bills currently under consideration including the Waxman-Markey house bill and the Boxer-Kerry Senate bill.

"The Waxman-Markey legislation preempts the Clean Air Act, correctly I think, and calls for 'cap and trade' programs to reach reduction goals.

"Boxer-Kerry does not preempt the CAA so you have the possibility of conflicts between the two approaches. But analysts are unsure if this legislation will get through the senate."

Roush also provided a background on what GHG emissions are and what Michigan is doing to address them.

The Michigan Climate Action Plan was released last year and represented the work of Michigan Climate Action Council appointed by Gov. Granholm in late 2007, Roush said.

The group was comprised of individuals from academia, a broad base of industry, utilities, state and local government, and environmental interest groups.

The report can be accessed at:

http://www.pewclimate.org/node/6425

"Their basic goal was to look at what can be done in Michigan to reduce greenhouse gas emissions," Roush said. "They came up with 54 approaches and recommended a 20 percent reduction by 2020 and an 80 percent reduction below 2005 levels by 2050.

"The claim there will be a net cumulative savings of about $10 billion between 2009 and 2025 if these reductions are reached but I don't agree with that.

"If anything, energy will become more expensive. There will be a whole set of laws that companies will have to meet and that will an expense. How expensive is being debated but energy prices will increase."

In providing background earlier in his presentation, Roush noted that "most people don't understand how much change we are talking about" to achieve reduction goals.

"In my view, a 20 percent reduction from 2005 levels of greeenhouse gases is a very big first step. And an 80 percent reduction is a huge step.

"Just to reduce emissions by four percent over 2005 levels in Michigan alone would require:

--replacing two of our coal power plants with nuclear facilities;

--2,300 new 2.5 megawatt wind turbines;

--a 25 percent reduction in vehicle travel; and

--a 25 percent increase in average automobile fleet mileages.

"Given that no one is talking seriously about building nuclear power plants at least in the next five years, trying to increase fuel efficiency is more likely to happen sooner, within 10 years I think.

"From my perspective, there is a lot of work to be done to reduce emissions even by 25 percent let alone 80 percent.

"People need to understand that a lot of different things will need to happen to reach these goals. There is no one magic bullet, like increasing automobile fuel efficiency. Much more than that will have to happen," he said.

There are four basic reduction strategies, Roush said, including:

--reduce demand for electricity and fuel;

--increase combustion and transmission efficiency of electric grids, coal-fired power plants, and furnaces and boilers;

--substitute alternative fuels and processes like solar, geothermal, wind, nuclear, and bio fuels; and

--treat or eliminate emissions using technologies such carbon sequestration or methane combustion.

Published: Fri, Jan 29, 2010

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