Climate Change and Creative Problem Solving

A story in the New York Times recently portrays the ice cap in Greenland as rapidly disappearing. (NYT). Indeed, the pictures are dramatic. The story is based on experiences and observations from scientists working in the area, and it tends to support similar claims made by researchers in recent years about changing conditions in Greenland. At the same time, those who deny that global warming is occurring, or at least that it is not significantly caused by human activity, have pointed to other reasons for the reduction in the ice cap there. (Junk Science) Thus, observations are made that this may be part of a recurring trend of expansion and contraction of the ice cap or the result of geothermal activity or, perhaps, for some other reason not caused by human activity. And, indeed, there are some legitimate points and for both sides as explained in a recent BBC summary of the global warming issues. (Guide to Climate Change)

Can both positions be embraced, more or less? It seems so, at least to the Governor of Alaska. Recently he was quoted in a BCC interview as noting that climate changes are significantly affecting living conditions for native Alaskans in remote villages, particularly in the arctic region where villages are being threatened by rising sea levels. This means that the State may be obliged to assist those villages including through relocation. How would he pay for this apparent result of global warming? Through additional drilling for oil and natural gas in Alaska. (BBC Interview)

An ironic circle of reasoning? You be the judge.

Clean Power Rule Challenges Will Proceed Sooner or Later, But Its Goal May Already Be Close at Hand

Legal challenges filed almost immediately after President Obama announced the Clean Power Rule may be premature. That is what attorneys for EPA told the U.S. Court of Appeals for the District of Columbia Circuit recently in response to an action brought by West Virginia and several other states. The fundamental issue according to EPA attorneys is that a challenge is not ripe until the regulation is published in the Federal Register, and that may not occur for several weeks. (The Hill).

The particular issue raised by the petitioners is an effort to stay the effect of the Rule while the challenge is proceeding. As we have noticed previously, a failure to obtain a stay associated with a challenge to EPA’s Mercury and Air Toxics Standard (“MATS”) effectively resulted in substantial compliance with that rule during the COURSE OF lengthy litigation and before the Supreme Court invalidated MATS earlier this summer. As a practical matter, many power companies proceeded with actions necessary to comply with MATS, including the shutdown of some older power plants and a conversion from coal to natural gas for others. Indeed, the Governor of Michigan, the State that lead the challenge to MATS, announced earlier this week that the State will comply with the Clean Power Plan even though Michigan’s Attorney General is participating in the challenge led by West Virginia. (Michigan Stance Highlights Clean Power Plan Fray) EPA has indicated that publication of the Clean Power Rule in the Federal Register will occur in less than two months.

While challenges to the Clean Power Rule will certainly be pursued, the Rule’s goal of a substantial reduction in carbon emissions seems to be well along the way. This has apparently occurred primarily due to a substantial increase in the availability and use of natural gas resulting from the boom in hydraulic fracturing, particularly with respect to shale gas. Recent articles in Forbes (Fracking is Our Clean Power Plan) and (Greenhouse Gas Emissions Plunge) note the dramatic increase in the availability of fracked natural gas and that this has been a key to reducing carbon emissions in the U.S. to their lowest levels since 1988. Indeed, the argument is made that the goal set out in the Clean Power Plan for a 32% reduction in carbon emissions from 2005 levels by 2030, is substantially at hand. The indications are that there has already been approximately 25% reduction since 2007, deemed attributable to fracking specifically and the greater availability of natural gas generally. Viewed from a somewhat different prospective, by 2012, the United States had achieved approximately 70% of the CO2 emissions reductions targeted under the Kyoto Agreement.

While the coal industry has focused on what it refers as to as a regulatory “war on coal,” the dramatic shift in the source of energy for power plants appears, at least to this point, to be primarily due to the availability of relatively cheap natural gas. For example, electricity generated from coal-fired plants declined approximately 25% from 2007 to 2012 while generation from natural gas-fired plants increased by approximately 35%. While it is true that power generation from renewable sources has also increased, to date, the real shift appears to be to natural gas.

With this in mind, it bears noting that the Clean Power Plan will likely have an adverse impact on the use of natural gas for power generation. The Plan places a significant emphasis on renewable sources and away from those which generate CO2, including natural gas. Thus, and assuming that the Rule is substantially upheld in its present form, the question may become one of the significance of the individual state emissions budgets and how they might impact total CO2 emissions regardless of whether the source is coal or natural gas.


Obama Announces Clean Power Plan, Fights to Follow

On August 3, 2015, President Obama announced the finalization of the long-awaited Clean Power Plan, a policy primarily intended to further the commitment to combatting global warming. The Plan focuses on the electric power generating sector of the nation’s economy, which is responsible for approximately 31% of U.S. greenhouse gas emissions (primarily carbon dioxide, fluorinated gases, and nitrous oxide). The Plan intends to reduce greenhouse gas emissions by 2030 to levels below those generated in 2005. (Washington Post ).

A fact sheet provided by U.S. EPA to accompany the President’s announcement (Overview) indicates that the new rules call for the States to develop individual plans aimed at reducing levels of greenhouse gases from power generation for existing sources while EPA develops the standards for new sources. States will have to work under individual greenhouse emissions limits or budgets and will have incentives to encourage renewable sources such as wind, solar and nuclear. States must submit a final plan, or alternatively, an initial submission with an extension request, by September 6, 2016. Those States receiving extensions must submit final plans no later than September 6, 2018. Thereafter, the rule allows 15 years for full implementation of all reduction measures.

States may choose either source-specific requirements to require all of effected power plants to meet emissions performance rates or State-specific rate-based or mass-based goals. Alternatively, State plans can include a mixture of measures to include renewable energy standards and programs to improve residential energy efficiency. In addition, States may work together in a cooperative or multi-state approach including emissions trading. While most of the attention to the Plan has focused on the perceived ‘War on Coal’, the Plan seeks to limit greenhouse emissions from power plants regardless of fuel source. So, even though plants fueled by natural gas produce less greenhouse emissions, those will also be counted in overall State caps or limits.

Reaction from opponents was quick. Several States have indicated they will directly oppose the regulations in court challenges and, yesterday, sixteen State Attorneys General sent a letter to EPA Administrator Gina McCarthy requesting that she suspend the rules while a court challenge proceeds. (Salt Lake Tribune). The States will no doubt be joined in this effort by affected industry groups. Legal challenges will not be ripe until the rule becomes final with publication in the Federal Register, although that is expected to occur soon.

While legal challenges will play out over the next several years, leaders in Congress are already moving in a variety of directions to thwart or limit the effectiveness of the rules. (The Hill). These actions are expected to take the form of both legislation to undo or limit the scope of regulations and efforts to limit appropriations necessary to implement the Plan.

To the extent that opponents view this simply as a war on coal, they may be missing the scope of the Plan and ignoring things that have already happened. It seems clear that the combined effects of cheap natural gas and the EPA mercury regulation affecting the power industry have already substantially reduced the use of coal. With respect to the mercury rule, although the Supreme Court invalidated it earlier this summer (Michigan v. EPA), the rule had not been stayed during the course of the litigation, and many power producers took significant steps to meet its requirements in the interim. As a consequence, many noted that the actual effects of the mercury rule and related efforts, by prompting closure of some older coal-fired plants, the conversion of others to natural gas, and the on-going planning for new plants, mean that the effort to reduce significantly the emissions from coal-fired power generation is already well underway. (See, for example Forbes – James Conca and comments from various utilities to BNA last April). If so, these most recent rules, while important for a variety of reasons, may prove to be significant on the issue of burning coal for power production primarily because they continue a process that has already begun.

State of Tennessee Sues EPA and the Corps of Engineers on Waters of the United States Final Rule

Today, the State of Tennessee joined in one of the many lawsuits filed by States challenging the EPA and Corps of Engineers Final Rule that defines of Waters of the United States  under the federal Clean Water Act.   See prior blog post on July 2, 2015.  The federal agencies stated in their Final Rule that they had actually narrowed the definition but most agricultural and industry groups believe the Final Rule will do the  opposite.  Tennessee joined the lawsuit already filed in the United States District Court of Ohio by the States of Ohio and Michigan.  Tennessee’s foray into the litigation marks what is believed to be the 30th state to join in a lawsuit challenging the Final Rule (the count goes up regularly).  No states have yet asked to intervene on behalf of the government. The lawsuit seeks to have the court vacate the rule permanently and require the agencies to start over.  The states allege in the lawsuit  that the agencies were in “violation of the structural federalism provisions of the United States Constitution Including the Tenth Amendment.”  According to the lawsuit the government’s position  “would result in a significant impingement of the States’ traditional and primary power over land and water use, . . . and would exceed the Commerce Clause powers of the federal government and violate the Tenth Amendment.”

All Region IV states except North Carolina have now joined in one of the various lawsuits.

Georgia EPD Proposing New Requirements on New Inert Waste Landfill Operations

Georgia EPD is proposing to require any new inert waste landfill operations to obtain an inert waste landfill solid waste handling permit. It also provides a transition period to allow existing inert waste landfill operations to comply with these new requirements or close under the existing inert waste landfill permit by rule closure criteria.

EPD will be requiring specific design and operational criteria, and will impose a solid waste handling permit process to replace the existing notification of permit by rule (PBR) operations.


For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Georgia Department of Revenue Proposes Conservation Tax Credit Rule Changes

The Georgia Department of Revenue Income is proposing a change to the Tax Division Rule on conservation tax credits. Interested parties seeking to comment on the proposed Rule should review the notice for further guidance. The notice and an exact copy and synopsis of the proposed Rule may be found on the Department’s website at:


For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Land Protection Brand of Georgia EPD Organizational Changes

The Land Protection Branch of Georgia EPD recently announced several organizational changes. The reorganization became effective on August 1, 2012.

Included among the Branch reorganization are:

• The position of Assistant Branch Chief has been established and is held by Jeff Cown

• A new Special Projects role for data management and work process improvements is held by Renee Hudson Goodley

• Response and Remediation Program now includes the Brownfields Unit. Derrick Williams has assumed the role of Program Manager, moving from the Underground Storage Tank Program

• The new Program Manager for the Underground Storage Tank Program is Lon Revall

• Acting Manager of the Solid Waste Program, pending selection of a permanent program manager, is Melanie Henry

• Jan Simmons heads the Hazardous Waste Management Program, under which the Hazardous Waste Compliance Program and the Lead and Asbestos Unit have been consolidated

• Jim Brown leads the Hazardous Waste Corrective Action Program, and part of the Hazardous Waste Management remediation projects and associated staff now fall under that Program

• The Waste Reduction and Scrap Tire Units are being consolidated into the Solid Waste



For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.


Approaching Compliance Dates: Stationary Engines

Compliance dates for the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), 40 CFR 63 Subpart ZZZZ, for existing sources are soon approaching. In 2010, EPA expanded the applicability of this rule to control hazardous air emissions not only from new engines but also existing engines, regardless of whether those engines are located at major source or area (minor) sources of HAPs.

Types of engines covered include non-emergency engines used for power generation (including peak shaving), emergency backup power generators, and emergency fire pumps.  Many of these engines are exempt from air quality permitting but are still subject to the RICE NESHAP.

Diesel fueled engines have a compliance date of May 3, 2013, and natural gas and gasoline fueled engines have a compliance date of October 19, 2013.

Key requirements of the RICE NESHAP include:

• Emissions control requirements for certain types of non-emergency engines.

• Operation and maintenance (O&M) and work practice requirements for emergency engines and certain types of non-emergency engines.

• Limits on non-emergency running hours for emergency engines.

• Record keeping requirements.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

On August 21, the D.C. Circuit Court of Appeals, in EME Homer City Generation, L.P v. EPA, F.3d (D. C. Cir. 2012), vacated the Cross-State Air Pollution Rule (CSAPR, also known as the “Transport Rule”) and remanded the rulemaking proceeding to EPA. The D.C. Circuit directed EPA to continue to administer the Clean Air Interstate Rule (CAIR) “pending implementation of a valid replacement”.

Judge Brett Kavanagh wrote for the Court:

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

5th Circuit SIP Decision May Have Broader Applicability

On August 13, the Fifth Circuit Court of Appeals issued its decision in State of Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), affirming Texas’s State Implementation Plan (SIP) allowing for “flexible permits.” Under Texas’s Flexible Permit Program, a facility may make modifications without agency review so long as aggregate emissions do not exceed an emissions cap for the facility. The case could have broader implications across the country, if other courts adopt the Fifth Circuit’s reasoning to allow increased flexibility in state air permitting programs. In this case, the Court determined that if a SIP meets the statutory criteria of the Clean Air Act, then the EPA must approve the SIP.  Rejection based on non-statutory preferences is not allowed.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.