Tag: greenhouse gas emissions

Wallach v. Town of Dryden and Local Control of Hydraulic Fracturing

By Carter Hall—November 20, 2014 at 11:03 a.m.

jay_easementOn June 30 of this year the Court of Appeals of New York issued its final ruling in Wallach v. Town of Dryden, holding that municipalities in New York State have the authority to exclude hydraulic fracturing from their borders through zoning.[1] Although the case hinged upon the interpretation of a New York statute with no reach beyond the state’s borders, the Town of Dryden decision has significance for supporters and opponents of hydraulic fracturing throughout the country as a sign that local governments may erect serious barriers to the controversial practice even in the absence of stringent Federal or state regulation.

Dryden, a town of less than 15,000 people located outside of Ithaca, New York, prohibits all “industrial” development within town borders through its zoning code.[2] In August 2011 the town amended its zoning ordinance to specify that all activities related to oil and gas extraction are included in this general prohibition on industrial development.[3] Anschutz Exploration Corporation, an energy company that held leases to oil and gas rights on several Dryden properties, sued the town in New York State court in September 2011, arguing that New York’s Oil, Gas and Solution Mining Law (“OGSL”)[4] preempted the amendment. Dryden prevailed on a motion for summary judgment, which was affirmed by state appellate court; the case reached New York’s highest court in summer 2014.[5]

The legal issue in the case was whether OGSL’s supersession clause, which states that the OGSL supersedes all “local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,”[6] prevented towns like Dryden from passing zoning ordinances that exclude hydraulic fracturing. To answer this question, the Court of Appeals engaged in a straightforward exercise in statutory interpretation. Examining the plain language, statutory scheme, and legislative history of the law, the Court concluded that the supersession clause was intended to prevent municipalities from directly regulating oil and gas development—i.e., imposing specific technical and operational requirements on drillers.[7] Finding no indication that the OGSL was intended to curtail towns’ traditional home rule authority to enact zoning ordinances, the Court held that Dryden’s zoning amendment is not precluded under the supersession clause and affirmed the intermediate appellate court’s decision.[8]

The Court of Appeals decision vindicated hydraulic fracturing bans and moratoria enacted in Dryden and 179 other municipalities, with an additional 86 municipalities considering similar measures as of October 9, 2014. Many of these towns are underlain by the Marcellus Shale formation—estimated to be the largest natural gas reserves of any formation in the United States—and in the long run these ordinances could permanently place large quantities of natural gas beyond the reach of extractors. However, the Town of Dryden did not have the immediate effect of halting any ongoing hydraulic fracturing operations. New York State has had a de facto moratorium on the practice for six years, with Governor Andrew Cuomo’s administration refusing to permit any drilling until a study examining its health impacts is completed. Accordingly, no hydraulic fracturing was actually underway in New York State throughout the Town of Dryden litigation. Of course, if the moratorium is ever lifted, the decision will have real practical effect on the ability of energy companies to exploit New York’s natural gas reserves.

Because Town of Dryden was a state court decision hinging a narrow question of interpretation of a state statute, it has no legal effect beyond New York’s borders. However, the symbolic significance of Dryden’s victory reaches nationwide. Mary Anne Sumne, Dryden’s town supervisor, has expressed hopes for the decision’s impact beyond New York’s borders: “I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what’s right for their own communities.”

The ability of towns in these states and others to restrict hydraulic fracturing will depend upon the interaction between state-specific home rule jurisprudence and natural resource laws, but Dryden’s high-profile victory has encouraged towns that have enacted similar ordinances from Hawaii to California to Texas. With the national politicians of both political parties largely in support of hydraulic fracturing and state-level governments varying dramatically in their oil and gas extraction regulations, local control efforts such as Dryden’s present one of the most formidable obstacles to the controversial practice.


[1] Wallach v. Town of Dryden, 23 N.Y.3d 728, 739 (2014), reargument denied, No. 2014-867, 2014 WL 5366261 (N.Y. Oct. 16, 2014).
[2] Id. at 739-40.
[3] Id. at 740.
[4] Id.
[5] Wallach, 23 N.Y. at 741.
[6]N.Y. Envtl. Conserv. Law § 23-0303(2) (McKinney).
[7] SeeWallach, 23 N.Y. at 750.
[8] Id. at 753-54.

Exploring the EPA’s New Power Plant Regulations with Professor Jody Freeman and Professor Richard Lazarus

Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.
Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.

By Samantha Caravello -— October 14 at 12:11 p.m.

[Update: a video of Professor Freeman and Professor Lazarus’s talks at the Harvard University Center for the Environment is available here.]

In June, EPA released a proposed rule for regulating greenhouse gas emissions from existing power plants pursuant to its authority under Section 111(d) of the Clean Air Act (“CAA”). The rule sets forth state-specific goals for emissions reductions but gives states flexibility as to how they will meet those targets. Ultimately, the rule will lead to a 30 percent cut in carbon dioxide emissions (from 2005 levels) by 2030. If implemented, the rule will be a critical component of President Obama’s environmental legacy and a chance to show the world that the United States is serious about climate action. Of course, with this great game-changing power comes great controversy – in fact, twelve states have already sued the EPA over these rules, claiming that the agency lacks authority to regulate greenhouse gases under the 111(d) provision.

This challenge and others will play out over the coming months as the comment period continues and a final rule is ultimately issued, but last week Jody Freeman and Richard Lazarus, professors at Harvard Law School and preeminent legal scholars, gave the Harvard University community a preview of the major arguments that will be made. The talk, “The President’s Efforts to Combat Climate Change Without Congress: What is EPA Proposing to Do and is it Legal?” was sponsored by the Harvard University Center for the Environment, and it was given to a standing-room-only crowd.

Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.
Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.

Professors Freeman and Lazarus gave an overview of the proposed 111(d) rule and of the Supreme Court’s recent history with the CAA and greenhouse gases. Last term, the Court issued two rulings that were largely favorable to EPA’s ability to exercise its authority to regulate global warming pollution under the CAA: EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA (“UARG”). However, the UARG opinion contained what some consider to be “warning shots” to the EPA, signaling the Court’s potential unwillingness to accept the premise that Congress intended to grant the agency broad authority to regulate power plant greenhouse gas emissions, and by extension the nation’s energy sector, with one provision of the CAA, Section 111. After discussing other, threshold, complications with the new rule, Professors Lazarus and Freeman identified this question of EPA’s authority as likely to be the most significant and controversial issue. Section 111 of the CAA gives EPA the authority to create regulations under which states must submit plans that set standards of performance for power plants, with standard of performance defined as based on the best system of emission reduction. Where the potential for legal challenge comes in is that EPA defined “system” broadly, to include “anything” that reduces emissions from the power plants. This makes sense on its face, as a literal reading of the statute, but its practical implications give EPA extremely expansive authority. What will win these challenges, according to Professors Freeman and Lazarus, is really good lawyering—there are arguments on both sides, but it all comes down to convincing five justices, with Justice Kennedy likely providing the key swing vote.

The additional insights into the Supreme Court’s view of EPA’s regulatory authority imparted by Professors Lazarus and Freeman can’t be accurately captured in a short blog post, but Harvard Environmental Law Review readers will soon have the chance to hear their full thoughts on these issues: Both professors will be authoring pieces in ELR’s Fall 2014 issue as part of a series of essays exploring the implications of the UARG decision, including the potential impact on the legality of EPA’s new 111(d) rule. The story of EPA’s 111(d) regulations is just beginning, and ELR and the Harvard environmental law community are fortunate to have world-class environmental scholars Professors Lazarus and Freeman to offer their insights along the way.

Toward Greener FERC Regulation of the Power Industry

By Christopher J. Bateman and James T.B. Tripp

America’s electricity industry is at the heart of some of the nation’s and world’s biggest environmental challenges, including climate change. Yet the Federal Energy Regulatory Commission (“FERC”), which has regulatory jurisdiction over wholesale sales and transmission of electricity in interstate commerce and is charged with ensuring that rates and other aspects of the industry are “just and reasonable,” has an official policy of excluding environmental considerations from its regulation of the industry. This Article traces the evolution of this policy and argues that it is time for a new and better approach—one that integrates economic and environmental regulation of the industry, helps the United States achieve a clean energy future, and reduces excessive environmental impacts.

This Article explores the possibility of such an approach under the Federal Power Act (“FPA”), which provides FERC’s mandate. In doing so, it addresses FERC’s reasoning for its current policy and finds these reasons unpersuasive as a matter of law and policy. Contrary to FERC’s position, it is plausible to view the FPA alongside other federal laws as being silent or ambiguous about FERC’s environmental authority, thus permitting an environmentally inclusive approach within reasonable constraints. This reading of the FPA is reinforced by a host of policy considerations: the urgent need to address the U.S. electricity industry’s significant contribution to climate change; the inadequacy of and continuing uncertainty surrounding existing regulatory efforts on this front; FERC’s expertise in aspects of the electricity industry important to effective design and implementation of regulatory solutions; the unique nature of greenhouse gas emissions as pollutants and the feasibility of FERC regulation of carbon emissions in particular; and the glaring problems with our schizophrenic approach to energy regulation, in which environmental regulation and traditional utility regulation often undermine each other, creating inefficiencies.

This Article offers a number of concrete examples of the types of progressive industry reforms that would be possible if FERC adopted an environmentally inclusive approach, while also acknowledging and exploring the limits and challenges of this approach. On balance, the rewards seem to far outweigh the risks. Incorporating environmental considerations would allow FERC to make better informed decisions about how to maximize social welfare in areas such as transmission planning and organized electricity markets, and could create possibilities for productive collaborations with other regulatory authorities, including the Environmental Protection Agency, to guide the nation toward smarter energy policy.

Cite as: Christopher J. Bateman and James T.B. Tripp, Toward Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014)

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Teaching an Old Dog New Tricks: Adapting Public Utility Commissions to Meet Twenty-First Century Climate Challenges

Climate change and efforts to address it have put the electric utility system under increasing pressure to adapt and evolve. Key to the success of these efforts will be the support of public utility commissions, the state agencies that oversee retail electric utilities.

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Toward Greener FERC Regulation of the Power Industry

Photo credit: Nixdorf, Wikimedia Commons
Photo credit: Nixdorf, Wikimedia Commons

August 12, 2014 at 1:30pm

America’s electricity industry is at the heart of some of the nation’s and world’s biggest environmental challenges, including climate change. Yet the Federal Energy Regulatory Commission (“FERC”), which has regulatory jurisdiction over wholesale sales and transmission of electricity in interstate commerce and is charged with ensuring that rates and other aspects of the industry are “just and reasonable,” has an official policy of excluding environmental considerations from its oversight of the industry.

In “Toward Greener FERC Regulation of the Power Industry,” in the forthcoming issue of the Harvard Environmental Law Review, Harvard Law School alumnus Christopher Bateman and Environmental Defense Fund senior counsel James T.B. Tripp trace the evolution of this policy and argue that it is time for a new and better approach—one that integrates economic and environmental regulation of the industry, and helps the United States achieve a clean energy future, especially with respect to greenhouse gas emissions.

Bateman and Tripp explore the possibility of such an approach under the Federal Power Act (“FPA”), which provides FERC’s mandate. In doing so, they address FERC’s reasoning for its current policy and find these reasons unpersuasive. Contrary to FERC’s position, they argue, it is plausible to view the FPA alongside other federal laws as being silent or ambiguous about FERC’s environmental authority, thus permitting an environmentally inclusive approach within reasonable constraints. This reading of the FPA is reinforced by a host of policy considerations: the urgent need to address the U.S. electricity industry’s significant contribution to climate change; the inadequacy of and continuing uncertainty surrounding existing regulatory efforts on this front; FERC’s expertise in aspects of the electricity industry important to effective design and implementation of regulatory solutions; the unique nature of greenhouse gas emissions as pollutants and the feasibility of FERC regulation of carbon emissions in particular; and the glaring problems with our schizophrenic approach to energy regulation, in which environmental regulation and traditional utility regulation often undermine each other, creating inefficiencies.

The article offers concrete examples of the types of progressive industry reforms that would be possible under an environmentally inclusive approach, while also acknowledging and exploring the limits and challenges of this approach. On balance, Bateman and Tripp conclude, the rewards seem to far outweigh the risks. FERC’s current policy causes it to regulate essentially in the dark as to environmental costs and benefits. By incorporating environmental considerations into its oversight of areas such as transmission planning and organized wholesale electricity markets, and by approaching environmental problems in a coordinated way with EPA and other regulators, the Commission would make better informed decisions and could potentially help the nation achieve significant, welfare-maximizing reductions in greenhouse gas emissions.

The question of whether FERC is doing enough to address climate change is one that scholars and policymakers are increasingly starting to raise. Recently, a pair of Berkeley scholars proposed a set of reformsendorsed by United States Congressman Henry Waxman on the floor of the House–that FERC could undertake across its jurisdictional areas to do more. Focusing on FERC’s oversight of the electricity industry, Bateman and Tripp reach similar conclusions about the need for FERC to do more, and seek to provide the most sustained argument yet for a new approach to meet the defining energy and environmental challenges of our time.

Unilateral Climate Regulation

By James W. Coleman

It is now plain that decades of negotiation toward a binding global climate treaty have failed. Yet, at the same time, many nations are adopting a range of unilateral policies to address climate change. The existing literature on climate policy neglects these unilateral climate regulations because it focuses on the necessity and possible design of a multilateral climate treaty. But these domestic regulations present a unique puzzle: Given that climate outcomes are determined by global emissions, and that unilateral regulations inevitably influence incentives to regulate elsewhere, how can domestic action achieve the greatest marginal reduction in global emissions? In other words, how can regulators encourage, rather than discourage, action in other countries?

This Article answers this question by describing three ways that unilateral regulation influences incentives to regulate in other countries. First, domestic regulations can interact with other nations’ regulations in a way that increases those countries’ incentives to regulate. Second, unilateral regulation can support incentives to regulate elsewhere by limiting the incentive for polluters to move, or “leak,” to countries with weaker regulation. Third, unilateral regulations that are modular and simple will serve as potential model rules in a wider swath of countries. These considerations have important implications for regulators looking to maximize the global impact of their unilateral actions. They suggest that, contrary to the received wisdom in climate policy, regulators should prefer regulation with publicly transparent costs. They also suggest that, contrary to the current state and federal preference for cap-and-trade systems and energy-efficiency standards, unilateral regulators should prefer carbon taxes and funding for green technology.

Cite as: James W. Coleman, Unilateral Climate Regulation, 38 Harv. Envtl. L. Rev. 87 (2014).

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Ten Ways States Can Combat Ocean Acidification (and Why They Should)

By Ryan P. Kelly and Margaret R. Caldwell

The ocean is becoming more acidic worldwide as a result of increasing atmospheric concentrations of carbon dioxide (“CO2”) and other pollutants. This fundamental change is likely to have substantial ecological and economic consequences globally. In this Article, we provide a toolbox for understanding and addressing the drivers of ocean acidification. We begin with an overview of the relevant science, highlighting known causes of chemical change in the coastal ocean. Because of the difficulties associated with controlling diffuse atmospheric pollutants such as CO2, we then focus on controlling smaller-scale agents of acidification, discussing ten legal and policy tools that state government agencies can use to mitigate the problem. This bottom-up approach does not solve the global CO2 problem, but instead offers a more immediate means of addressing the challenges of a rapidly changing ocean. States have ample legal authority to address many of the causes of ocean acidification; what remains is to implement that authority to safeguard our iconic coastal resources.

Cite as: Ryan P. Kelly and Margaret R. Caldwell, Ten Ways States Can Combat Ocean Acidification (and Why They Should), 37 Harv. Envtl. L. Rev. 57 (2013).

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Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA

By Laura King

Coalition for Responsible Regulation v. EPA follows from and amplifies the Supreme Court’s decision in Massachusetts v. EPA. Both cases announce the Environmental Protection Agency’s power to regulate greenhouse gases under the Clean Air Act — with Massachusetts v. EPA prodding a reticent EPA into regulation of greenhouse gases under the motor vehicle provision of the Act, and Coalition for Responsible Regulation v. EPA affirming both EPA’s obedience to Massachusetts v. EPA and the agency’s new willingness to extend greenhouse gas regulation to stationary sources. The cases are significant because they together stimulated and sustained the first controls on greenhouse gases in the United States, altering a status quo in which greenhouse gas emissions were free — not taxed or regulated or otherwise constrained.

Overall, Coalition for Responsible Regulation v. EPA is a win for the environment. Its effect is to preserve permitting requirements for stationary sources that emit greenhouse gases. It also supports and extends the Supreme Court’s recognition in Massachusetts v. EPA that EPA may regulate greenhouse gases under the Clean Air Act. However, what the case reveals about the American legal system’s ability to respond to changes in the natural world is sobering. It exposes a system in need of revision: one in which lawmaking, designed to be measured, manages instead to be dawdling, and agencies and courts must summon all of their resources — prognostication, strategy, rhetorical finesse, and luck — to turn outdated statutes toward pressing threats. In this case, in an effort to provide some response to climate change and thus fulfill broader public mandates, both EPA and the D.C. Circuit held statutory language at arm’s length: EPA, by promulgating rules that “tailored” the clearest kind of statutory language — numbers; the court, by calling on standing doctrine to avoid facing — and thus having to overturn — EPA’s fast-and-loose interpretation.

These choices, which were essentially workarounds to avoid the application of straightforward statutory language, together succeeded in preserving greenhouse gas regulation, but not without risk and compromise to environmental positions. Whenever an agency departs from statutory language, it risks reversal. That risk is especially acute when the reviewing court is the D.C. Circuit and the reviewing panel includes David Tatel, who, in his capacity as a judge on the D.C. Circuit, has urged agency officials — if they are to satisfy the court and fulfill their role as responsible public servants — to “(1) [r]ead the statute; (2) read the statute; (3) read the statute!” The D.C. Circuit, for its part, preserved EPA’s workaround by doing a workaround itself, one that shrinks somewhat that cornerstone of environmental litigation: standing doctrine.

Part I of this comment puts Coalition for Responsible Regulation v. EPA in context by reviewing the history of greenhouse gas regulation under the Clean Air Act. Part II profiles the case itself. Parts III and IV use Coalition for
Responsible Regulation v. EPA as a showcase for the nimble, risky choices required of agencies and courts as they use outdated statutory frameworks to respond to new environmental challenges. Thus, Part III shows EPA balancing the danger of taking a red pen to the Act, on the one hand, against the danger of overseeing a sprawling regulatory program, on the other. Part IV shows the D.C. Circuit preserving EPA’s approach to regulation of greenhouse gases at the cost of narrowing the doctrine of standing. The trade, as we will see in the details, is not terrible, but it is a compromise nevertheless.

Cite as: Laura King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA, 37 Harv. Envtl. L. Rev. 267 (2013).

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