Air Quality and Climate Change

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Transparency regarding mitigation and financing rules likely to be key hurdles to overcome in achieving climate goals.

By Rosa Espin, Paul Davies, and Michael Green

The European Commissioner for Climate Action and Energy, Miguel Arias Cañete, recently commented on momentum in the European Union (EU) regarding climate change and the action that countries across the globe need to take to implement the Paris Agreement goals. The Commissioner addressed three main issues:

  • The Paris Agreement and its goals
  • How the EU has maintained the momentum at the recent COP23 UN Climate Change Conference (including establishing what COP24 participants intend to discuss at COP24 this year)
  • What the EU has done to implement the Paris Agreement targets (including the current status of the relevant legislation)

A coalition government would likely focus on energy, transportation, and the automotive industry to meet Paris Agreement targets.

By Joern Kassow and Patrick Braasch

Background

After the 2017 German parliamentary elections, the conservative Christian Democrats (CDU/CSU) and the Social Democrats (SPD) faced difficulties in forming a new government. However, the parties have now agreed on preliminary key terms for the government’s 2018-2021 policy in a 28-page memorandum. The key terms will serve as the basis of formal coalition negotiations, which the parties likely will conclude in February or March 2018. Whether the parties will form a new government at the end of these negotiations still remains to be decided, however, based on the current election results, a so-called “grand coalition” between the two largest parliamentary groups is the most probable outcome. Therefore, the key terms will likely form the cornerstones of the next government’s political agenda.

The memorandum provides insight into German environmental policy, which will have significant impact, particularly on the energy and automotive industries. This blog highlights two key terms of the memorandum, and considers the potential outcome for German energy and automotive industries.

The ambitious proposal aims to ensure all plastic packaging is reusable or recyclable by 2030.

By Paul Davies, Michael Green and Betta Righini

Background

Amid increasing scrutiny of plastic waste, the European Commission (the Commission) has released a for plastics in a circular economy (the Strategy). The Strategy builds upon the European Union’s (the EU’s) prior measures to reduce plastic waste, such as the Plastic Bags Directive, which has significantly reduced plastic bag use throughout several Member States. However, in order to support the Commission’s “vision for Europe’s new plastics economy,” the Strategy sets a number of more far-reaching and ambitious goals.

Long-awaited 25-year environment plan aims to “restore” nature and eliminate plastic waste.

By Paul Davies and Michael Green

The UK government has announced its long-awaited 25-year environment plan (the ‘Plan’).

Having originally said it would publish the Plan by the end of 2016, the Department for Environment, Food & Rural Affairs (Defra) subsequently delayed the release, raising concerns that the Plan might not come to fruition until after Brexit. In 2017, Defra requested input from the Natural Capital Committee (NCC), which was duly published in September of last year. The NCC suggested a number of ambitious goals that should be included in the Plan, such as the remediation of all historical land contamination and that air quality throughout the UK should meet international health-based standards.

By Joshua Bledsoe, Sara Orr, and Bobbi-Jo Dobush

Major investors with collective control of more than US$26.3 trillion are continuing to push for an increase in public companies’ governance, oversight, and disclosure of climate-related risk. Unveiled on December 12, 2017 at the One Planet Summit in Paris, the Climate Action 100+ is designed to promote the goals of the 2015 Paris Agreement. The Paris Agreement provides a global action plan to limit global temperature rise to well below 2 degrees Celsius.

A group of 225 investors, led by California Public Employees’ Retirement System (CalPERS) and other major investors, have signed on to the Climate Action 100+ since the invitation to join was issued in September 2017. The signatories will be led by five coordinating partners including Asia Investor Group on Climate Change (AIGCC), Ceres; Investor Group on Climate Change (IGCC), Institutional Investors Group on Climate Change (IIGCC), and Principles for Responsible Investment (PRI).

By Arthur Foerster and Jamie Friedland

On January 12, 2018, the California Air Resources Board (CARB) will conduct a public workshop regarding CARB staff’s potential amendments to California’s heavy-duty vehicle (HDV) emission warranty requirements. According to CARB staff, the workshop will focus on potential changes to Title 13, California Code of Regulations, Section 2036, and specifically, amendments to required emission warranty periods and manufacturer-scheduled maintenance. CARB staff will present the workshop as a webcast (available here).

Background

Under United States law, the federal Clean Air Act (CAA) generally preempts individual states from adopting their own emission standards. The Act, however, grants California the ability to seek authorization to set the state’s own more stringent standards. See 42 U.S.C. § 7543(b). Manufacturers generally prefer a single national standard and, as a practical matter, often follow CARB standards when they are stricter.

By Marc Campopiano and Shannon Cheng

A proposed Scoping Plan Update released by the California Air Resources Board (ARB) targets the land use sector and development projects for greenhouse gas (GHG) reductions. The proposed update was spurred by the passage of Senate Bill (SB) 32 and Assembly Bill (AB) 398, which codified California’s goal of reducing GHG emissions to 40% below 1990 levels by 2030 and extended the Cap-and-Trade Program, respectively.

In a shift from prior versions of the Scoping Plan, which largely avoided discussing the California Environmental Quality Act’s (CEQA’s) role in addressing climate impacts from new land use development, ARB recommends that local agencies cut GHG emissions from the land use sector in three key ways:

By Joern Kassow and Patrick Braasch

Latham has previously written about the Lliuya v. RWE AG case, in which a Peruvian farmer has sought damages from German energy giant RWE for climate change effects in his home country. The Higher Regional Court of Hamm indicated during oral hearings that it would likely proceed to take evidence. The court has since issued its decision, providing further insight and analysis of the case.

RWE claimed that it could not be held liable for damages, as the company held valid environmental permits under emission control regulations relating to the operations of its material CO2 emitting plants — and therefore the emissions were legal. However, the court rejected RWE’s claim, noting that Mr. Lliuya did not seek to shut down or limit RWE’s operation of business. The court further explained the fundamental legal principle that anyone who causes damages to third party property — even through lawful acts — generally may be liable. That RWE obtained, and presumably complied, with all required permits under German environmental law would therefore not preclude liability for the potential damage caused by the company’s lawful emissions.

By Michael Green and Paul Davies

A coalition of medical and environmental groups has called upon the European Commission (EC) to propose specific legislation that will address pollution, in particular, by active pharmaceutical ingredients (APIs). This political development highlights the complex debate currently taking place over how to identify and address the effects of APIs.

An API is the biologically active component of a pharmaceutical drug. Other ingredients, known as “excipients”, are the inert substances present in a pharmaceutical drug. For example, if a product is in syrup form, the excipient is the liquid being used.

The coalition has raised the concern that APIs make their way into groundwater, rivers, lakes, oceans, and even drinking water after being disposed, with potentially harmful effects on the environment and human health. APIs are specifically designed to trigger a biological process (unlike most other chemical pollutants). As such, if APIs are present at significant-enough levels, biological processes in humans and/or animals may be unintentionally activated with potentially harmful effects. For example, some evidence suggests that the environmental presence of antibiotics contributes to developing antibiotic-resistant strains of bacteria, and that synthetic hormones found in contraceptive pills cause infertility in fish. Moreover, the effects on humans of inadvertent long-term exposure to low levels of APIs in drinking water, particularly given the potential for the presence and interaction of multiple APIs, are relatively unknown.

By Jörn Kassow and Patrick Braasch

A German appeals court has indicated in a groundbreaking civil action that major CO2 producers may be directly liable for global environmental damage caused by climate change.

Mr Saúl Luciano Lliuya, a Peruvian farmer, has alleged that RWE AG, Germany’s second-largest electricity producer, is responsible for the impact of climate change in the Peruvian city of Huaraz — even though RWE does not operate in Peru. His claim invokes German civil law rules, according to which, property owners may claim damages from the person responsible for causing the pollution to the extent that the pollution in question would constitute unlawful interference. These rules generally correspond to the “polluter pays” principle that polluters should bear the costs of managing pollution to prevent damaging human health or the environment. Although the relevant legal principles are firmly established in German case law, the courts have not yet applied them to hold a single emitter of fossil fuels financially responsible for climate change impacts.