Insights and commentary on environmental issues and developments impacting business across the world
Insights and commentary on environmental issues and developments impacting business across the world
By Robert A. Wyman, Jr., Michael G. Romey, and Aron Potash
Climate tort plaintiffs cannot catch a break in the Fifth Circuit Court of Appeals. In a May 14, 2013, decision, the Fifth Circuit found—once again—that a group of Mississippi Gulf Coast property owners is barred from alleging that energy companies tortiously emitted greenhouse gases (“GHGs”).
The case, Ned Comer, et al. v. Murphy Oil USA, et al., has a long and twisting history and at…
By Janice Schneider, Buck Endemann, and Jennifer Roy
On October 22, 2012, the Ninth Circuit vacated certain federal authorizations for the Ruby Pipeline, a completed natural gas pipeline running from Wyoming to Oregon. The Court concluded that the U.S. Fish and Wildlife Service’s (Service) Biological Opinion (BiOp) failed to comply with the federal Endangered Species Act (ESA).[1] The Court also found that the Bureau of Land Management’s (BLM) Record of Decision (ROD) relying on the…
By Joshua T. Bledsoe, Tim B. Henderson, and Jared W. Johnson
Seeking to quell uncertainty surrounding the definition of resource shuffling ahead of the first cap-and-trade auction on November 14, 2012, the California Air Resources Board (“CARB”) passed a Resolution on October 18, 2012, requiring the Executive Officer to redefine resource shuffling and provide concrete examples. CARB’s Resolution requires CARB Staff to issue proposed regulatory amendments by mid-2013 and release regulatory guidance consistent with the Resolution before the…
By Joshua T. Bledsoe, Tim B. Henderson, and Jared W. Johnson
With the first auction in California’s cap and trade program fast-approaching on November 14, 2012, the California Air Resources Board (“ARB”) recently suspended a much-discussed aspect of the program that requires first deliverers of electricity to attest that they have not engaged in “resource shuffling.” Resource shuffling involves a seller of energy into California modifying its portfolio of sales so that lower or no-emission electricity is…
By Michael Feeley and Aron Potash
A lawsuit which delayed and once threatened to dismantle California’s greenhouse gas (GHG) cap and trade scheme was largely resolved last week, removing one roadblock to California’s plan to be the first state to impose an economy-wide GHG trading program. Under modified regulations adopted by the California Air Resources Board (CARB) on October 20, 2011, California will require certain emitters of GHGs to obtain allowances or offsets in amounts commensurate to their respective emissions…
In a decision that could have widespread application to cases challenging agency action, the California Supreme Court in Voices of Wetlands v. State Water Resources Control Board recently upheld the use of a procedural mechanism that some earlier decisions had held impermissible—the interlocutory remand to an administrative agency. Use of this procedure can significantly expedite the litigation and the administrative proceedings when an agency makes findings that are not sufficiently supported by the evidence.
In the case, the owners of…
Fossil fuel power plants are critical to California achieving its ambitious goals for a high-renewable, lowcarbon energy future. Today’s Los Angeles and San Francisco Daily Journal has an interesting thought piece (PDF) penned by Michael Carroll and Marc Campopiano that discusses this seeming paradox.