Environment, Land & Resources

EU Council Decision to Streamline Green Reporting and Reduce Administrative Burden on Member States

Posted in European Environmental and Public Law

Decision is third initiative of the EC’s REFIT programme to simplify regulation for Member States.

By Paul A. Davies and Michael D. Green

The EU Council has adopted a decision to reduce and consolidate EU environmental reporting legislation in order to decrease bureaucracy and costs as well as to simplify environmental reporting compliance for Member States.

This streamlining forms part of the regulatory fitness and performance programme (REFIT) which the European Commission (the Commission) established in 2014. The REFIT programme aims to remove out-of-date and unnecessary legislation relating to environmental monitoring and reporting as well as to improve communication between Member States and citizens so that information about the environment is shared more efficiently.

As part of this effort, the Commission set out its “repeal package” which was made up of three initiatives. The decision taken on 14 May 2018 was the third part of this initiative. Continue Reading

France Takes Steps to Address Climate Change Through Constitutional Reform

Posted in Air Quality and Climate Change, European Environmental and Public Law

Intense lobbying surrounds a recent proposal to amend Article 34 of the Constitution.

By Paul Davies and Fabrice Fages

French Prime Minister Édouard Philippe recently unveiled a series of proposed modifications to the French Constitution that align with President Emmanuel Macron’s campaign platform. The proposals, which were unveiled on April 4, face objections from a range of stakeholders and political observers.

One of these proposals is to incorporate the fight against climate change in France’s fundamental law by amending Article 34 of the Constitution, which delineates the scope of statute law and the fields in which statutes will determine certain fundamental rules and basic principles. These fields are deemed to be pillars of the republic and therefore merit legislative foundations. Based on these legislative foundations, the government will subsequently adopt regulatory enforcement measures (decrees or orders) as matters other than those coming under the scope of statute law shall be matters for regulation” (Constitution, Article 37). Continue Reading

Latin America Addresses Environmental Priorities at Green Climate Fund Dialogue

Posted in Air Quality and Climate Change, Project Siting and Approval

Representatives from 19 countries explore climate responses in several areas, including urban development, transportation, renewable energy, early warning systems, and agriculture.

By Rosa Espín and Leticia Sitges

Nearly 200 participants from 19 different countries recently convened in Colombia for the Green Climate Fund’s (the Fund’s) first Structured Dialogue with Latin America. The meeting, which was held on March 5–8 with the collaboration of the Government of Colombia, underscores the importance of the conclusions reached under such Structured Dialogues. The Fund holds Structured Dialogues in different areas of the world to exchange insights with regional governments on how to use public investment to address climate change concerns and promote private funding.

The United Nations Framework Convention on Climate Change created the Fund in 2010 to support developing countries’ efforts to limit or reduce emissions to fight the effects of climate change. In 2015, the Paris Agreement designated the global Fund an important role in achieving certain targets, for example, keeping global temperature rise well below 2º C above pre-industrial levels and to further limit the temperature increase to 1.5º C. Continue Reading

Big Changes Ahead for US Renewable Fuel Standard

Posted in Power, Oil, Gas and Minerals

Recapping the first year of activity by the Trump administration on key issues.

By Joel C. Beauvais and Steven P. Croley

The Renewable Fuel Standard, or RFS, has been the focus of sustained policy discussion and resulting uncertainty during the first year of the Trump administration. Over the past year, the administration has floated, and then set aside, several proposals for substantial policy change. The administration has also granted RFS exemptions to a substantial number of small refineries, dampening demand for the tradable credits known as renewable identification numbers, or RINs — which represent production of renewable fuels and are used to demonstrate compliance with RFS requirements — and RIN prices have decreased from approximately US$1 in November 2017 to about US$0.34 today. The administration meanwhile is conducting high-level policy discussions and considering a number of potential other changes, including allowing sales of E15 (gasoline that is 10 to 15% ethanol by volume) during summer months, currently prohibited in most areas of the country.

In an Expert Analysis article published by Law360, Latham partners Joel Beauvais and Steven Croley examined these developments, with a focus on the legal framework and implications for the RFS program writ large. The article is available here.

California Court of Appeal Finds EIR’s Air Quality Analysis Deficient

Posted in Air Quality and Climate Change, California, CEQA, Project Siting and Approval

By Christopher Garrett, James Erselius, and Samantha Seikkula

CEQA Case Report: Understanding the Judicial Landscape for Development[1]

In a partially published opinion[2] issued January 12, 2018, City of Long Beach v. City of Los Angeles, the California Court of Appeal affirmed in part and reversed in part the trial court’s judgment requiring the City of Los Angeles (Los Angeles) to set aside certifications of the environmental impact report (EIR) for a project whereby BNSF Railway Company (BNSF) would construct a 153-acre near-dock railyard four miles from the Ports of Long Beach and Los Angeles (Project).  In summary, the court determined:

  • An EIR’s analysis of air quality impacts is incomplete where it fails to provide information sufficient for the public and decision makers to understand how air quality will change with reference to time.
  • The Attorney General is exempt from CEQA’s issue exhaustion requirement.
  • A project description does not need to analyze the project’s environmental impacts.

Petitioner City of Long Beach (Petitioner) filed a petition for writ of mandate seeking to invalidate the City of Los Angeles’s (Los Angeles) EIR for the Project.  On appeal, Los Angeles challenged the trial court’s conclusions that: 1) the EIR was deficient because its project description and analysis of indirect impacts failed to discuss reasonably foreseeable indirect impacts from freeing capacity at the existing railyard near the Project site, the Hobart railyard; 2) the EIR’s analysis of noise, traffic, air quality, and greenhouse gas emissions was inadequate; and 3) the Attorney General, who intervened in the petition, was not precluded from asserting objections to the EIR that were not raised in the administrative proceedings.  The court agreed with Los Angeles that the project description, analysis of indirect impacts, and analysis of noise, traffic, and greenhouse gas emissions were adequate, but affirmed the trial court’s decision with respect to the inadequacy of the EIR’s air quality analysis and the Attorney General’s exemption from issue exhaustion rules.  Continue Reading

California Court of Appeal Approves Environmental Analysis for Oil Refinery Propane Recovery Project

Posted in California, CEQA, Power, Oil, Gas and Minerals

By Winston P. Stromberg, Lucas I. Quass, and Derek Galey

Rodeo Citzens Ass’n v. County of Contra Costa, California Court of Appeal, First Appellate District, Division Three, Case No. A151184 (March 20, 2018).

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In a published opinion issued March 20, 2018, Rodeo Citizens v. County of Contra Costa, the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate requiring the County of Contra Costa to set aside the certification of the environmental impact report (EIR) and approval of the land use permit for the Propane Recovery Project (Project) at an oil refinery in Rodeo, California. In summary, the court determined:

  • A project description need not address potential changes in the use of a facility that are unrelated to the project under consideration.
  • CEQA does not require speculation regarding downstream greenhouse gas (GHG) emissions that cannot be reasonably feasibly quantified.

The petitioner, Rodeo Citizens Association (Petitioner) had filed a petition for writ of mandate seeking to invalidate the County’s certification of the final EIR and approval of the Project’s land use permit. The trial court found certain deficiencies in the air quality section of the Recirculated Final EIR (RFEIR) and issued a writ of mandate requiring reconsideration of that section, but rejected Petitioner’s remaining arguments. Despite the trial court’s issuance of the writ, Petitioner appealed the trial court’s decision rejecting Petitioner’s additional arguments that the project description and the analysis of GHG emissions and environmental hazards fail to comply with CEQA. The court found no error in the trial court’s conclusions and affirmed the peremptory writ as issued. Continue Reading

European Parliament Adopts Circular Economy Package

Posted in Contaminated Properties & Waste, European Environmental and Public Law

Member States will follow a single EU legislative framework merging industrial policies and environmental protection to encourage sustainable economic and social development.

By Paul A. Davies and Jörn Kassow

The European Parliament adopted the new Circular Economy Package, on 18 April 2018, setting ambitious, legally binding EU targets for waste recycling and reduction of landfilling. The package aims to further increase municipal waste recycling and lower the amount of landfilling. Currently, over a quarter of municipal waste is still landfilled and less than half is recycled or composted. This has a negative impact on the environment, climate, human health, as well as the economy.

Through the updated waste management legislation, the EU promotes a shift to a more sustainable model known as the circular economy. This is a model of production and consumption that extends the lifecycle of products, components, and materials, to reduce waste disposal to a minimum. This shall replace the former linear economic model, which is based on a “take-make-consume-throw away” pattern and therefore wastes a lot of resources and energy. Continue Reading

France Unveils Circular Economy Roadmap

Posted in Air Quality and Climate Change, Contaminated Properties & Waste, Power, Oil, Gas and Minerals

The multi-pronged plan will encourage a collaborative national effort to dispose of France’s “consume and discard” model.

By Paul A. Davies

The French Prime Minister recently unveiled the country’s circular economy roadmap. The 50-item scheme, announced on 23 April 2018, is the result of consultation with stakeholders (November 2017 —January 2018) and a two-stage online public participation involving the solicitation of comments and then the submission of draft roadmap (November 2017—February 2018).

The roadmap

Some measures are new and some derive from Law n°2015-992 of 17 August 2015 on energy transition, which was the catalyst for the nation’s circular economy scheme in a variety of respects. By 2019, the roadmap will be followed by a bill and regulatory measures transposing the EU’s Circular Economy Package objectives, which will lead to the amendment of the following directives:

  • Waste
  • Packaging waste
  • Landfill
  • Waste Electrical and Electronic Equipment Directive (WEEE)
  • End-of-life vehicles
  • Waste batteries
  • Accumulators

Continue Reading

China’s Action Against Plastic Pollution

Posted in Air Quality and Climate Change, China, Contaminated Properties & Waste

The government’s plan to tackle internal and imported plastic waste is the latest phase in China’s clean energy commitment.

By Paul A. Davies and R. Andrew Westgate

Although China’s ambitious targets for reducing carbon emissions and air pollution have received global attention and coverage, the country’s significant steps to reduce solid waste pollution have been subject to less scrutiny. Plastics, which are both manufactured and imported into China for recycling in vast quantities, are a case point. The National Development and Reform Commissions (NDRC), China’s key economic planning body, has frequently affirmed its commitment to reducing plastic waste pollution. To further this objective, the NDRC is expected to revise a 2008 order, which banned the production and sale of plastic bags less than 0.025 millimetres thick. The order also made it compulsory for retailers to charge customers for plastic bags. Continue Reading

Carbon Markets Must Balance Stability and Adaptability When Implementing Emissions Trading Systems

Posted in Air Quality and Climate Change, California, China, Power, Oil, Gas and Minerals, Project Siting and Approval

As China begins to implement its emissions trading system, the country may look around the globe for regulatory guidance.

By Paul A. Davies and R. Andrew Westgate

China established its national emissions trading system (ETS) as a key component of the plan to meet its commitments under the Paris Agreement. The country’s participation in the Paris Agreement is significant not only because it contributes 15% toward total global carbon emissions, but because China was a key proponent of the agreement during its negotiation.

China’s initial hurdle was how to systematically collect the emissions data necessary to design and implement the emissions trading scheme. Accurate and comprehensive emissions data is critical not only for setting the level of the overall cap, but also in determining how free allowances will be allocated to regulated companies. Determining the rate at which the emissions cap declines also requires predicting future emission rates and market demand levels. Continue Reading