Think Waxman/Markey is scary, just wait for EPA, state rules

Just in case you were hoping the Waxman/Markey climate change bill would fizzle out this year, there’s a whole bunch of pending state laws, litigation and a rejuvenated Environmental Protection Agency that the energy industry needs to worry about.
“The risk is not just from Congress but the other branches of government and the courts,” said John Hahn, an attorney with law firm Mayer Brown in a conference the firm held in Houston on Tuesday.
First, there’s the endangerment finding by the EPA that stems for a 2007 court case that greenhouse gases are something that should be regulated under the Clean Air Act. It’s widely agreed that the CAA is not a good tool for regulating CO2, says Hahn, yet the process continues to move ahead. The same is happening in many states, first and foremost California, but others are pushing for their own rules too.
“It’s a pretty well orchestrated effort by environmentalist to make state-by-state regulations so onerous …” they will instead support the federal legislation that is working through Congress as a lesser of two evils, Hahn said.
The EPA is also making it clear it will be much more activist than it was under the last administration, Hahn said. The agency’s staff has started to hold up the permitting process for some new power plants because they didn’t include the impact of their greenhouse gas emissions as a factor. This has been the case with the planned Desert Rock plant in New Mexico.. There’s suspicion that EPA officials have been meeting with environmentalists to craft reasons for challenging some permits under review, Hahn said.
“If you’ve got a permit hanging on your wall already it’s a really good thing,” he said.
And in North Carolina a federal judge recently ruled that four power plants operated by the Tennessee Valley Authority in Alabama and Tennessee constitute “public nuisances” to the Tar Heel State’s air quality. The judge is now requiring between $5 billion and $7 billion in emissions controls at those plants. Hahn notes that the plants were in compliance with all federal laws but the judge essentially took the advice of expert witnesses the plaintiff’s put on the stand and determined that the federal rules didn’t go far enough. Here is a 2006 piece about the suit, some links to articles about the decision made earlier this year, and a copy of the judge’s ruling below.
Add on top of that a recent New York Times story that claims an industry group ignored its own scientific staff’s conclusions that were more supportive of man-made climate change claims than the group wanted them to be (that article has an amended editor’s note attached which changes the conclusion slightly). Such articles seem to be trying to intimidate businesses that are opposed to climate change legislation by giving them a taint like that the tobacco industry has faced when it was revealed it sat on data about the negative impact of smoking for decades, Hahn said.
“There’s not much to be optimistic about” for the energy industry on the regulation and litigation front, he said.


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