Category: Environmental Law

One Individual and 20 Organizations Receive Inaugural Climate Leadership Awards

An article by U.S. Environmental Protection Agency recently was published in The National Law Review regarding Climate Leadership Awards:

WASHINGTON:  the U.S. Environmental Protection Agency (EPA), the Association of Climate Change Officers (ACCO),the Center for Climate and Energy Solutions (C2ES) (formerly the Pew Center on Global Climate Change), and The Climate Registry (TCR) named the winners of the inaugural Climate Leadership Awards. The awards recognize corporate, organizational, and individual leadership in addressing climate change and reducing carbon pollution. From setting and exceeding aggressive emissions reduction goals to reducing the emissions associated with shipping goods, these organizations are improving efficiency, identifying energy and cost saving opportunities, and reducing pollution.

“The inaugural winners of the Climate Leadership Award have demonstrated aggressive greenhouse gas (GHG) management actions and climate-related strategies,” said Daniel Kreeger, ACCO’s Executive Director. “The exemplary climate response exhibited by these organizations is a testament to the visionary leadership and innovation within their executive suite and workforce. The thought and action leadership of these award winners is a model for all companies, government entities, academic institutions and individuals for which to strive to achieve.”

“Corporate leadership is essential to meeting our climate and energy challenges,” said C2ES President Eileen Claussen. “We jo

in EPA in applauding the first winners of the Climate Leadership Award. These companies demonstrate every day that it’s possible to shrink your carbon footprint without compromising your bottom line. Their accomplishments will inspire other companies to act, and will contribute to strong, sensible policies benefiting both our economy and our climate.”

“The Climate Registry congratulates the inaugural Climate Leadership Award winners on their impressive achievements,” said David Rosenheim, the executive director of TCR. “As we transition in the next few years to a low carbon economy, these organizations will undoubtedly reap the benefits of taking aggressive action to reduce their carbon risk.”

Organizational Leadership: Recognizes organizations for exemplary leadership both in their internal response to climate change and through engagement of their peers, competitors, partners, and value chain:

  • IBM
  • San Diego Gas & Electric

Individual Leadership: Recognizes an individual for outstanding efforts in leading an organization’s response to climate change:

  • Gene Rodrigues, Director of Customer Energy Efficiency and Solar at Southern California Edison

Supply Chain Leadership: Recognizes organizations for actively addressing emissions outside their operations:

  • Port of Los Angeles
  • SAP
  • UPS

Excellence in GHG Management (Goal Achievement): Recognizes organizations for aggressively managing and reducing their GHG emissions:

  • Campbell Soup Company
  • Casella Waste Systems
  • Conservation Services Group
  • Cummins Inc.
  • Fairchild Semiconductor
  • Genzyme
  • Hasbro
  • Intel Corporation
  • International Paper
  • SC Johnson

Excellence in GHG Management (Goal Setting): Recognizes organizations for establishing aggressive GHG reduction goals:

  • Avaya
  • Bentley Prince Street
  • Campbell Soup Company
  • Ford Motor Company
  • Gap Inc.
  • Ingersoll Rand

The awards will be presented tonight at the inaugural Climate Leadership Conference in Fort Lauderdale, Fla. The conference will bring together leaders from business, government and academic institutions who are interested in exchanging best practices on how to address climate change while simultaneously running more competitive and sustainable operations.

More information about the Climate Leadership Awards and award winners:http://epa.gov/climateleadership/awards/2012winners.html

© Copyright 2012 United States Environmental Protection Agency

Energy & Clean Tech Connections – Recent Washington D.C. Updates

Recently in The National Law Review an article regarding Energy & Clean Tech Federal Updates by Thomas R. Burton, III of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.:

On Capitol Hill, the administration promoted energy-related matters in the third week of February while Congress was in recess for the Presidents’ Day holiday. While speaking to college students in Miami February 23, President Obama criticized the pro-drilling approach of Republicans and the reluctance of the oil and gas industry to relinquish its rights to $4 billion a year in tax breaks, which the President has called for zeroing out in his fiscal year 2013 budget request.

Separately, the administration acknowledged that gas prices are rising faster and earlier this year than ever before and is using this issue to remind Americans that developing clean, alternative energy sources is critical. Also, after two years of speculation, Treasury Secretary Timothy Geithner last week unveiled the administration’s proposal for tax reform. Among other provisions, including reductions in the corporate and manufacturing tax rates, the proposal would make the tax credit for the production of renewable electricity permanent.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Energy and Environment Update, February 19, 2012

Recently published in The National Law Review was an article by David J. Leiter and Sarah Litke of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding a Compilation of Energy and Evironment Updates:

Energy and Climate Debate

President Obama on February 13 sent Congress a $3.8 trillion budget request for fiscal year 2013 that, after a week of hearings and analysis, is likely to continue fueling debates over spending and taxes through the end of the year. One of the most interesting highlights of the budget includes the president’s varied ways of encouraging clean energy and infrastructure spending this year as the country works to boost the economy and create jobs.

In line with his State of the Union call for an all of the above energy strategy, the president’s budget request calls for an elimination of $4 billion in fossil fuel subsidies and a shift in funding from decreasing military actions in Iraq and Afghanistan to infrastructure projects. Though numerous entire department budgets remain relatively static, clean energy, climate, and environment issues are important components and priorities of the request, which encourages developing new clean energy, advancing research and development funding for clean energy, and promoting advanced manufacturing and jobs.

On the tax front, the administration proposes extending the production tax credit for wind facilities and the investment tax credit for wind facility properties to properties placed in service in 2013; the budget would also provide an additional $5 billion for the Advanced Energy Manufacturing Tax Credit (48C). The request would expand the tax credit for plug-in electric vehicles and remove the cap on the number of vehicles per manufacturer that can receive the credit, while also proposing a new tax credit for medium and heavy duty vehicles.

The emphasis on clean energy funding in the Department of Energy’s overall $27.2 billion funding request is high. Last Monday, the president proposed spending $2.3 billion, a 29 percent increase, on renewable energy and energy efficiency programs in the agency’s FY2013 budget. The request also includes increased support for advanced manufacturing (up 150 percent from $115.6 million to $290 million) and the department’s Advanced Research Projects Agency – Energy initiative, and at the same time, the agency is not seeking further loan authority or credit subsidies for its loan guarantee program.

President Obama proposed trimming the Environmental Protection Agency’s fiscal 2013 budget by $105 million, marking the third time the administration has sought to cut the agency’s funding to compensate for rising deficit. The request would give the agency $8.3 billion, a 1.2 decrease from the $8.4 billion Congress provided in its omnibus spending package last year. The largest cuts would come from the Drinking Water and Clean Water State Revolving Funds.

The FY2013 budget proposal for the Agriculture Department provides $6.1 billion in direct loans, for energy initiatives, through the Rural Utilities Service program. Up to $2 billion would be used to help reduce carbon dioxide emissions from fossil fuel power plants, with the balance being used to support rural renewable energy generation, transmission, and distribution.

Though approval of any budget may need to wait until the lame duck session at the end of the year Senate Majority Leader Harry Reid (D-NV) has told Senate appropriators to be ready with fiscal year 2013 bills soon, as he may have to fill floor time this summer with funding or Law of the Sea Treaty debates.

In addition to the budget, the other big piece of congressional action last week occurred February 17 when both houses voted to pass legislation extending a 2 percentage point cut in the employee side of the payroll tax cut through the end of 2012 and repealing billions of dollars in recent changes to corporate estimated tax payments. The House voted 293-132 to pass the bill (H.R. 3630), and the Senate followed soon thereafter to approve the measure on a 60-36 vote. The bill’s passage is particularly significant because lawmakers on both sides of the aisle were forced to accept that it would be politically impossible to find $93.2 billion in acceptable offsets to pay for the payroll tax portion of the bill before the March 1 expiration. The bill also extends federal unemployment insurance benefits and the doc fix, but does not include extensions of any other popular expired or expiring tax breaks, including the 1603 grants in lieu of tax credits program or the production tax credit.

In other news, Speaker of the House John Boehner announced last week that he would delay a vote on the $260 billion energy and transportation bill until after the Presidents’ Day recess. Part of the delay is in the need to find new offsets, as the payroll tax cut deal uses the reduction in pension benefits that was in the highway bill. Speaker Boehner also acknowledged that some members of his caucus have concerns with the plan, and with few Democrats likely to support the legislation, Republicans might not have had the votes. On the other hand, the House passed a plan, 237-187, February 16 to approve the Keystone XL pipeline and expand drilling offshore and in ANWR. Acting on one portion of the much larger transportation and infrastructure strategy, the House also approved amendments directing 80 percent of Clean Water Act citations over the BP oil spill to Gulf restoration efforts, approving a geothermal exploration project, and quickening environmental reviews for renewable energy projects on public lands. Despite roadblocks, including the introduction of many amendments, Senate Democrats vowed last week to finish work on their highway bill (the Moving Ahead for Progress in the 21st Century Act, S. 1813) after they return from the Presidents’ Day recess.

Congress

Solyndra Subpoenas

After spending the last week threatening to subpoena senior White House officials as part of an investigation of loan guarantees for Solyndra, House Republicans cancelled a February 17 Energy and Commerce Subcommittee on Oversight and Investigations vote to authorize the subpoenas. The group reached a deal to have some of the officials answer questions instead.

CES Forthcoming

Senate Energy and Natural Resources Chairman Jeff Bingaman (D-NM) will introduce legislation setting a national clean energy standard during the week of February 27. The senator is also likely to introduce at some point this session an industrial energy efficiency bill similar to legislation (S. 1639) that he has previously introduced.

Senators Send Energy Tax Letter

Senators Olympia Snowe (R-ME), Jeff Bingaman (D-NM), Dianne Feinstein (D-CA), John Kerry (D-MA), Maria Cantwell (D-WA), and Tom Carper (D-DE) sent a letter to Treasury Secretary Tim Geithner and Acting Director of the Office of Management and Budget Jeffrey Zients February 10 encouraging them to advance tax policies that improve energy efficiency and support clean energy incentives. Specifically, the senators asked the administration to include a performance based residential energy efficiency tax credit, an extension of the new energy efficient homes tax credit, and the simplification of the energy efficient commercial building deduction in the president’s budget request for fiscal year 2013. The group also asked that the administration work with them to develop a set of policies that offers long-term support to the clean energy and energy efficiency sectors, are fiscally responsible, and maintain clean energy jobs in the US.

Inquiry Into Solyndra Aspects of Prologis Conditional Loan Guarantee

On February 17, House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Rep. Cliff Stearns (R-FL), head of the oversight subcommittee, are launching an inquiry into the conditional approval of Prologis Inc.’s $1.4 billion loan guarantee for its Project Amp which involved installing Solyndra solar panels, despite concerns of Solyndra’s viability.DOE then issued a statement defending the Prologis loan guarantee.

Legislation Introduced

Senator David Vitter (R-LA) introduced legislation (S. 2100) February 13 to suspend sales of petroleum products from the Strategic Petroleum Reserve until certain conditions are met.

Congressman Charlie Bass (R-NH) introduced the Smart Energy Act (H.R. 4017) February 15 to spur innovations in energy efficiency technology by targeting the federal government’s energy usage and by providing more opportunities for private industry to use energy efficient technologies and systems.

The same day, Representative Ed Markey introduced three pieces of legislation (H.R. 4024, H.R. 4025, and H.R. 4026) to suspend approval of liquefied natural gas export terminals; allow the Secretary of Interior to accept bids on new oil and gas leases on Federal lands only from bidders certifying that all natural gas produced pursuant from such leases be offered for sale in the United States; and to reauthorize the Low-Income Home Energy Assistance Program for fiscal years 2013 through 2016.

Administration

Chinese VP Visit

President Obama and Vice President Joe Biden met with Chinese Vice President Xi Jinping February 14 to discuss a wide range of issues the two countries share. Speaking at a lunch at the State Department, the vice president praised cooperation taking place between the two countries, but also added that it can only be “mutually beneficial if the game is fair,” listing areas of tension in the relationship including intellectual property rights, trade, Chinese currency manipulation, technology transfer, and an uneven competitive playing field.

Department of Agriculture

Ethanol Production

Agriculture Secretary Tom Vilsack told the Senate Agriculture, Nutrition, and Forestry Committee February 15 that domestic production of corn ethanol is fast approaching the 15 billion gallon annual gap set by the 2007 renewable fuel standard, but that achieving an even larger quota for non-corn-based advanced biofuels will require a concerted federal effort. He said that without significant progress on the advanced biofuels, it will be impossible to reach the 36 billion gallon total biofuel requirement by 2022. Secretary Vilsack also reiterated that the United States has the potential to produce more than a billion tons of biomass each year to be used for fuel, electricity generation, and other energy applications by mid-century without harming farm and forestry products, and a billion tons of biomass contains energy equal to 30 percent of current annual domestic petroleum consumption. The USDA is hoping to hasten advances in non-ethanol biofuels through programs such as the Biomass Research and Development Initiative, which funds studies on harvesting, transporting, and storing raw feedstock for later conversion to biofuels.

Crop Insurance Cuts Defended

Agriculture Secretary Tom Vilsack appeared before the Senate Agriculture Committee February 15 for the first of several farm bill hearings this year. During the hearing, he defended proposed cuts to crop insurance, saying they were necessary to preserve nutrition funding. The committee will hold its next farm bill hearing February 28 to focus on conservation programs.

Ethanol Group Asks for Tax Provisions in Farm Bill

In a February 14 letter to Senators Debbie Stabenow (D-MI) and Pat Roberts (R-KS), chairwoman and ranking member of the Senate Committee on Agriculture, the Advanced Ethanol Council asked that the farm bill for 2012 include an extension of both the Cellulosic Biofuels Producer Tax Credit and the Special Depreciation Allowance for Cellulosic Biofuel Plant Property. The letter was sent as the committee continues work on a farm bill and a hearing specifically on farm bill related energy issues.

Department of Commerce

Satellites Top Priority

National Oceanic and Atmospheric Administrator Jane Lubchenco said February 16 that satellites to monitor weather and climate are the highest administration funding priority for fiscal year 2013. About $1.8 billion of the agency’s $5 billion budget would be used for polar orbiting and geostationary weather satellite systems as well as satellite systems for measuring sea level and potentially damaging storms. A portion of the agency’s more than $500 million research and development budget would fund Arctic research on climate change projections as well as marine sensor technologies to monitor and address algal blooms and ocean acidification.

Department of Defense

Army Corps to Streamline Renewable Permitting Structure

On February 21, in a scheduled Federal Register notice, the U.S. Army Corps of Engineers will issue two new nationwide permits, NWP 51 and NWP 52, authorizing land- and water-based renewable energy projects while also reissuing 48 existing permits. The permits will reduce the number of renewable energy generation projects that need Section 404 individual permits, with NWP 51 covering all components of land-based generation and NWP 52 covering water-based hydrokinetic and wind projects.

Department of Energy

$6.5 Million for Tribal Energy

On February 16, Energy Secretary Steven Chu awarded $6.5 million to 19 tribal clean energy projects as part of the administration’s commitment to strengthening partnerships with Tribal Nations and supporting tribal energy development. The competitively selected projects will allow tribes to advance clean energy within their communities by assessing local energy resources, developing renewable energy projects, and deploying clean energy technologies while saving money and creating new jobs.

Water Heater Plant Opens

The Department of Energy applauded the opening of General Electric Appliance’s new revitalized manufacturing facility in Louisville, KY, February 15, that will produce its highly efficient new water heaters. The company moved the operation from China, where it had been producing a former version of the appliance, to the newly opened plant – the first to open in the Appliance Park in over 50 years. The plant revitalization was partially funded through a $24.8 million manufacturing tax credit.

Efficient Lighting Standards

The Department of Energy’s Commercial Building Energy Alliances announced February 15 new voluntary energy-saving specifications for lighting troffers – rectangular overhead fixtures used in commercial buildings – and parking lot and structure lighting. The specification provides minimum performance levels for LED and fluorescent troffers used in commercial buildings, delivering energy savings of 15 to 45 percent. It also sets an optional section on lighting controls, which can increase savings up to 75 percent.

$1.3 Million for Efficiency Training

The Energy Department and the Department of Commerce’s National Institute of Standards and Technology Manufacturing Partnership Program announced February 16 up to $1.3 million for training programs to provide commercial building professionals with critical skills needed to optimize building efficiency, reduce waste, and save money. The programs will help to reach the Better Buildings Initiative goal of improving energy efficiency nationwide in commercial and industrial buildings by 20% by 2020. Applications are due March 30.

Efficiency Data Centers Webcast

The Department of Energy’s Federal Energy Management Program will present a live webcast March 1 titled Achieving Energy Efficient Data Centers with New ASHRAE Thermal Guidelines. The session will benefit professionals interested in operating data centers at wider environmental ranges and greater efficiencies to reduce energy, capital, and maintenance costs.

Department of Interior

Budget Request Defended

During a February 15 hearing before the House Natural Resources Committee, Interior Secretary Ken Salazar defended the agency’s energy regulations and efforts to balance development of energy and water resources. The agency’s strategy would prepare for new rules on oil and gas drilling, less oil shale leasing, and ecosystem conservation plans.

Department of State

Short Lived Pollutants Coalition

Secretary of State Hillary Clinton announced February 16 that she would joint with Environmental Protection Administrator Lisa Jackson and ministers from Bangladesh, Canada, Mexico, Sweden, and Ghana to announce a coalition dedicated to reducing short-lived climate pollutants. These pollutants include methane, hydrofluorocarbons, and black carbon. Studies have shown that inexpensive controls on methane, HFCs and black carbon could cut half a degree Celsius from the projected global temperature increase by 2030 and avoid millions of deaths annually during the same time frame. The head of the United Nations Environmental Programme will serve as the secretariat for the coalition – and other nations will have the opportunity to join at the next meeting of UNEP on April 23 in Stockholm. The Climate and Clean Air Coalition to Reduce Short Lived Climate Pollutants will have a first year budget of $5 million, and the U.S. has committed to contributing $12 million over the first two years of the effort. The coalition will seek to raise public awareness of short-lived climate pollutants and drive increased public and private mitigation efforts.

Environmental Protection Agency

E15 Progresses

Bringing it one step closer to legal domestic distribution, he Environmental Protection Agency announced February 17 that it had found that E15 caused no significant health effects. The agency approved the fuel for use in late model vehicles last year but has not yet completed final registration of the fuel as required under the Clean Air Act. The agency’s finding comes less than two weeks after the House Science, Space, and Technology Committee voted to require an additional 18 month study by the National Academy of Sciences before it could register the fuel blend for use in vehicles.

Comments to Backup Generating Engines Proposal

An Environmental Protection Agency proposal aimed at resolving a 2010 legal challenge brought by EnerNOC Inc. and EnergyConnect Inc. received numerous comments last week concluding that the plan to allow stationary engines generating electricity to quadruple their annual operations would increase air pollution and skew competition in electricity markets. Under the proposed settlement agreement, the agency would revise air toxics standards to allow reciprocating internal combustion engines to increase their demand response operations to 60 hours a year, up from 15 hours.

Mercury Standards

The Environmental Protection Agency published final mercury and air toxics standards for power plants February 16, and industry groups and states are expected to challenge the “appropriate and necessary” finding. Lawsuits must be filed in the U.S. Court of Appeals for the District of Columbia Circuit by April 16. Three suits were filed against the agency of the first day, by the National Mining Association, the National Black Chamber of Commerce, and White Stallion Energy Center. Additionally, Senator James Inhofe (R-OK) filed a disapproval resolution nullifying the agency’s mercury rule on February 16.

Comments on Vehicle Emission Rules

In comments received to proposals from the Environmental Protection Agency and the National Highway Traffic Safety Administration to set greenhouse gas emissions and fuel economy standards for model year 2017 through 2025, car manufacturers have expressed support for the rule, but expressed concern that they will not be able to sell the more expensive vehicles, and also suggested that the two agencies consider additional, periodic technical evaluations of the standards in addition to the planned midterm review. The final rules are expected in August.

Ethanol Exemption Arguments Heard

The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments February 13 in lawsuits challenging an Environmental Protection Agency rule exempting some ethanol facilities from a requirement to demonstrate that they reduce lifecycle greenhouse gases. A coalition of meat industry groups argued that removing the exemption would force some plants to close, reducing the demand for corn used to feed livestock. The Energy Independence and Security Act of 2007 only intended to exempt gas and biomass fired ethanol plants built between 2008 and 2009 from the 20 percent lifecycle standard for those two years, but the agency’s March 2010 rule implementing the renewable fuel standard made the exemption permanent.

Revised Recycling Rates

The Environmental Protection Agency revised last week its 2010 study of municipal solid waste generation, recycling, and disposal, using a more consistent methodology that brought the recycling rate of PET containers up from 21 to 29.2 percent and increased the national recycling rate to 34.1 percent. According to the revised analysis, the recycling rate of selected consumer electronics also fell from 26.6 percent to 19.6 percent.

Superfund Budget Request

The Environmental Protection Agency’s fiscal year 2013 budget request included a proposed $33 million cut, down to $532 million, for the remedial superfund program. This cut would halt new cleanups, create a backlog of 35 new construction projects, and hamper EPA’s ability to reach its goal of completing 93,400 superfund remedial site assessments by 2015. EPA requested $1.176 billion, $38 million less than last year, for the entire superfund program, including administration, research and technology development.

Activists File Suit Against EPA on Particulate Rule

On February 14, the American Lung Association and the National Parks Conservation Association filed a suit in the U.S. District Court for the District of Columbia seeking to compel the Environmental Protection Agency to conduct a five-year review of the national ambient air quality standards for fine particulate matter in line with existing deadlines. The rule setsthe standard for fine particles, 2.5 microns in diameter and smaller, and this challenge follows a similar suit recently filed by a coalition of 11 states. The suit asks for an order compelling EPA to complete the required review no later than Oct. 15, 2012.

Briefing Seeks to Vacate CSAPR

On February 14, the San Miguel Electric Cooperative Inc., along with Industrial Energy Consumers of America, the Southeastern Legal Foundation Inc., and Putnam County, GA, filed a brief asking the U.S. Court of Appeals for the District of Columbia Circuitto vacate the Environmental Protection Agency’s Cross-State Air Pollution Rule on the grounds that the agency has done an insufficient evaluation of how various power plant emissions regulations will affect compliance options. The briefing argues that EPA did not address the effects of an unreliable electric grid on communities’ health and welfare.

Navistar to Appeal Heavy Duty Diesel Engine Ruling

On February 17, Navistar Inc., filing in the U.S. Court of Appeals for the District of Columbia Circuit, appealed a federal court’s dismissal of Navistar’s suit seeking to compel the Environmental Protection Agency to recall certain heavy-duty diesel engines from model-year 2010.

Nuclear Regulatory Commission

Challenge to Plant Approval Dismissed

On February 17, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a petition by the Blue Ridge Environmental Defense League asking that the court review internal documents related to the Nuclear Regulatory Commission’s decision to reinstate construction permits for the Tennessee Valley Authority’s Bellefonte Units 1 and 2 in Alabama. The court said it did not have the authority to review internal documents related to the NRC approving TVA’s request to reinstate the plants’ construction permits in March 2009. Based on current economic conditions and new EPA regulations, TVA decided to resume building the 1,260 MW Bellefonte Unit 1 at a cost of $4.9 billion and an estimated completion date sometime between 2018 and 2020.

States

NY Fracking Bills

The New York State Legislature is considering bills to limit fracking in natural gas drilling while the Department of Environmental Conservation prepares to issue final rules to control the practice. More than two dozen bills on fracking have been introduced in the current legislative session, including measures to ban or place a temporary moratorium on fracking, grant local governments authority to prohibit fracking, and permit fracking waste to be classified as hazardous.

CA Office Supports Cap and Trade

The California Legislative Analyst’s Office released a report February 9 supporting the design of the state’s economywide greenhouse gas emissions trading program while offering suggestions to improve the operation of the program. The report concluded that in designing the program, the California Air Resources Board made a reasonable effort to balance the policy tradeoffs inherent in programs involving emissions leakage, offset credits, enforcement, and market volatility and oversight, and recommended changes that would shift the liability for failed offset credits from users to producers of the offset projects and eliminate holding limits on allocations.

Cape Wind PPA

On February 15, as part of the proposed merger agreement between utility companies Northeast Utilities and NSTAR, the Massachusetts government is requiring the merged entity to enter into a 15-year contract to purchase 27.5% of the proposed Cape Wind’s electricity. The whole agreement must be approved by the Massachusetts and Connecticut governments, with decisions expected in April, and the merger’s Cape Wind provision is contingent on the project breaking ground by 2016. The 130-turbine project is expected to produce up to 468MW of energy once fully operational.

State Renewable Portfolio Standards Driving Industry

On February 15, panelists participating in a webinar hosted by the American Council on Renewable Energy concluded that state renewable portfolio standards were currently driving the renewable energy industry, but even that may be insufficient to ensure the industry’s survival in the next decades in the face of expiring tax provisions at the federal level and the loss of Treasury’s cash grant program.

International

EU ETS Aviation List Updated

The European Commission published an updated list February 11 of airlines and aviation companies subject to the European Union’s Emissions Trading System for greenhouse gases. The new list includes Norway and Iceland as program participants. On February 16, the Commission found that the revisions would be considered only if European Union member states indicate that they are likely to back the changes.

 UN Secretary General Urges Focus on Sustainability in Business

On February 14, U.N. Secretary-General Ban Ki-moon, in a speech at the opening of a three-day global summit of business leaders preparing for theRio+20conference in Brazil in June, asked that the world’s business community should do more to promote sustainability and to work with U.N. programs of that nature like the Global Compact corporate responsibility initiative. He also suggested that as many representatives of the business community as possible join the Corporate Sustainability Forum, to be held on the sidelines of Rio+20, exploring innovative public-private sustainability partnerships. 

EU Ship Fuel Standards

On February 16, the European Parliament’s environment committee voted 48–15 to follow the United State’s example and surpass International Maritime Organization standards by only permitting ships using fuel with very low levels of sulfur. Since January 2012, the IMO has restricted sulfur in marine fuel to 3.5%, with the limit scheduled to decrease to 0.1% for sensitive “sulfur emission control areas” (SECAs) in 2015 and to 0.5% for all areas in 2020. Under this proposal, the EU would pursue the same strategy as the US, which has surpassed the IMO regulations by designating most of the water within 200 miles of the national shoreline as SECA. The committee approved the draft legislation, proposed by the Commission in July 2011, and it will become final once the European Parliament, scheduled to vote on the measure in May, and the EU Council agree on the regulations.

Mexican Climate Initiatives

Mexican President Felipe Calderón’s administration, via a 2007 climate change strategy and 2009’s Special Climate Change Program, is working to meet its 2020 target for a 30% reduction of carbon dioxide emissions from baseline projections. Mexico has minimum goals in place to cut 50 million metric tons annually in greenhouse gas emissions starting in 2012. Mexico is also aiming to increase its renewable power capacity to 5,700MW by 2017.

Miscellaneous

CCS Making GHG Progress

The Center for Climate and Energy Solutions released a study February 14 finding that projects that capture and store carbon dioxide emitted by coal-fired power plants and industrial processes are slowly making a dent in greenhouse gas emissions. The report, A Greenhouse Gas Accounting Framework for Carbon Capture and Storage Projects, concluded that the 15 large projects now either in operation or under construction around the world have the capacity to store more than 35 million tons of CO2 annually, and the center touted the report as the first comprehensive framework for calculating the degree to which such projects can actually reduce global emissions.

KPMG Report on Environmental Costs of Business

On February 14, KPMG released Expect the Unexpected: Building Business Value in a Changing World arguing that external environmental costs in 11 surveyed sectors rose from $566 billion in 2002 to $846 billion in 2010and those costs are doubling every 14 years. Climate change, water and energy scarcity, and volatile fuel prices will all drive up the cost of doing business while providing new business opportunities, according to the report.

Pacific Northwest Transportation & Climate Change Report

On February 3, the Region X Northwest Transportation Consortium released the report Climate Change Impact Assessment for Surface Transportation in the Pacific Northwest and Alaska evaluating potential impacts on Alaska and the Pacific Northwest’s transportation infrastructure from climate change, and suggesting possible adaption responses. The Consortium consists of the Alaska Department of Transportation & Public Facilities, Idaho Transportation Department, Oregon DOT, and Washington state DOT, as well as the University of Alaska Transportation Center, National Institute for Advanced Transportation Technology, OTREC, and TransNow. The report analyzed 5 pilot projects sponsored by the Federal Highway Administration that explore infrastructure vulnerability and risk assessment as well as a case study designed to identify Alaska, Idaho, Oregon, and Washington’s critical road, rail, and airport infrastructure.

ACEEE Study of Ratepayer Funding

The American Council for an Energy-Efficient Economy released a report called A National Survey of State Policies and Practices for the Evaluation of Ratepayer-Funded Energy Efficiency Programs analyzing the oversight of utilities’ ratepayer-funded energy efficiency programs in 44 states and the District of Columbia. Utilities oversee 37% of the programs, utilities and the utility regulatory commission together monitor the programs in 36% of the states, and the government or a third-party are responsible in the remaining 27%. Independent contractors or consultants conduct evaluation studies in 79% of the states, with the remaining 21% using utility or government agency staff. Among the surveyed states, 45% have statutory requirements for the evaluation of programs, with the same number relying on orders from regulatory commissions, and 10% have no formal policy requirement. The report also shows a range of 6 to 15 cents per kilowatt-hour for adding new electricity supply, but only a 1.6 to 3.3 cent per kilowatt-hour cost range for efficiency improvements. Per capita, Vermont and Massachusetts spend the most on energy efficiency at $58 per capita, whereas California spends $40, Connecticut $39, and Minnesota $38. The report called for evaluation and reporting guidelines and greater transparency, while stopping short of recommending a national standard given concerns about implementation, among other things.

University of Texas Fracking Study

On February 16, the Energy Institute at the University of Texas at Austin released a study finding that hydraulic fracturing has no direct connection to groundwater contamination and that many reports claiming fracking-related contamination involve the mishandling of fracking wastewater or above-ground spills. The Energy Institute had assistance from the Environmental Defense Fund in developing the study’s scope of work and methodology, but the study did not examine Environmental Protection Agency data related to a natural gas field in Pavillion, WY whose fracking activities the agency says is responsible for groundwater contamination.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

CEQ Issues Draft Guidance to Promote Efficient NEPA Environmental Reviews

Recently posted in the National Law Review  an article by attorney Melissa C. Meirink of Greenberg Traurig, LLP regarding the draft guideance issued by the Council on Environmental Quality (CEQ):

GT Law

The Council on Environmental Quality (CEQ) recently issued draft guidance designed to promote more efficient environmental reviews of projects subject to the National Environmental Policy Act (NEPA). NEPA is a procedural statute that requires federal agencies to consider the environmental impacts of their proposed actions before deciding to adopt a proposal or to take action. NEPA is triggered when there is a major federal action significantly affecting the quality of the human environment. Although the current NEPA-implementing regulations provide methods for preparing efficient and timely environmental reviews, the CEQ’s proposed guidance will emphasize and clarify those methods. Specifically, the guidance outlines the following principles for agencies to follow when conducting a NEPA review:

  • NEPA encourages simple, straightforward, and concise reviews
  • The NEPA process should begin early and should be integrated into project planning
  • NEPA reviews should adopt, use, and incorporate existing documents and studies
  • Targeted scoping can assist to focus environmental reviews on appropriate issues
  • Agencies should develop expeditious timelines for environmental reviews
  • Agencies should respond to comments in proportion to the scope and scale of the environmental issues raised

In addition, the draft guidance clarifies that many provisions of the existing regulations referring to an environmental impact statement (EIS) can also apply to an environmental assessment (EA).  The draft guidance also provides measures to eliminate duplication of efforts and to promote better interagency interaction.

The draft guidance would promote a clear and more streamlined environmental review process under NEPA that would benefit agencies, project proponents, and others interested in the NEPA process.  The CEQ is accepting public comment on the draft guidance until January 27, 2012. 

©2011 Greenberg Traurig, LLP. All rights reserved.

EPA Proposes Changes to Underground Storage Tank Regulations

Posted in the National Law Review an article by attorneys Julie A. Fournier, Michael J. Hughes and Lisa S. Zebovitz of Neal, Gerber & Eisenberg LLP about the EPA’s porposed changes to the underground storage tanks:

 

For the first time since federal regulations regarding underground storage tanks (USTs) were first promulgated in 1988, the United States Environmental Protection Agency (EPA) is proposing significant changes and additions to these regulations. The proposed rulemaking, found at 76 FR 71708, includes new requirements for USTs primarily focusing on proper operation and maintenance and spill prevention. EPA asserts that the revisions will improve the detection and prevention of UST releases leading to increased protection of human health and the environment.

Newly added requirements include secondary containment for new and replaced USTs, operator training programs, and periodic operation and maintenance requirements for UST systems, such as monthly inspections of spill prevention and release detection equipment, yearly testing of spill prevention equipment, and the testing of overfill prevention and certain secondary containment equipment every three years. In addition, deferrals for certain types of tanks will be eliminated. These requirements are intended to reflect significant technological advances made in the last two decades.

The proposed changes may be significant to the commercial and manufacturing sectors if they become effective. From a practical standpoint, owners and operators of tanks in the vast majority of states with approved UST programs may ultimately see changes in state regulations. States currently operating under an approved UST program will have three years to submit a revised program approval package to conform to the new regulations. Therefore, if the proposed regulations become effective, owners and operators of USTs should monitor changes to state programs closely. Owners and operators located in one of the few remaining states that do not have an approved UST program may be required under the new regulations to notify EPA when bringing a UST system into use or following a change in ownership.

Documents related to the proposed changes identified above, including a comparison of the current and proposed regulations and a Regulatory Impact Analysis, are available on EPA’s Web site. Comments to the proposed rule must be received by EPA on or before Feb. 16, 2012.

© 2011 Neal, Gerber & Eisenberg LLP.

U.S. Department of State to Delay Decision on Keystone XL Pipeline in Order to Assess Different Pathway Through Nebraska

Recently published in the National Law Review an article by attorney Ivan T. Sumner of Greenberg Traurig, LLP regarding an update on the Keystone XL oil pipeline:  

 

GT Law

 

 

On November 10, 2011, the U.S. State Department announced during a press briefing that it was delaying its decision on the proposed Keystone XL oil pipeline in order to assess other pathways through Nebraska. The 1700 mile crude oil pipeline which would run from the Alberta Oil Sands region in Canada and ultimately terminate at refineries along the Texas Gulf Coast would also traverse over the shallow water Ogallala aquifer in Nebraska’s Sand Hills region.

While the State Department released the final Environmental Impact Statement for the proposed oil pipeline on August 26, 2011, since that time opposition to the proposed route has expanded including Nebraska Governor Dave Heineman (R) due to the proposed route over the Ogallala aquifer. The Nebraska Governor had already called a special session of the Nebraska legislature for the crafting of pipeline siting/approval legislation that will be further vetted during the week of November 14th. The State Department is now to be looking at alternative routes of the Keystone pipeline that would avoid or minimize impacts to the Nebraska Sand Hills region. The alternative pipeline route review will be conducted as a supplemental environmental impact statement and the State Department’s final decision on the proposed pipeline is estimated to conclude sometime following the 2012 presidential election.

©2011 Greenberg Traurig, LLP. All rights reserved.

Asbestos Litigation Case Questions Safety in the Workplace

Recently posted in the National Law Review on  an article by C. James Zeszutek and David J. Singley of Dinsmore & Shohl LLP regarding an unsual case  in that the plaintiff worked as a technician servicing laboratory equipment and the alleged asbestos exposures occurred:

Although most would consider asbestos to be an old problem, limited to mainly the manufacturing and construction industries, asbestos has been incorporated into a myriad of products that had many and varied uses. Because asbestos was so pervasive, claims such as the one described below, occurring many years after the last occasions on which asbestos was used and arising from the use of sophisticated equipment in a laboratory, are still prevalent.

Dinsmore attorneys recently handled a premises liability case for a major minerals supply company. The case was unusual in that the plaintiff worked as a technician servicing laboratory equipment and the alleged asbestos exposures occurred into the 1990’s. This is in contrast to the typical asbestos case that usually involves exposure in heavy industry prior to 1980.

The plaintiff in this case initially worked as a technician for a manufacturer of laboratory instruments including thermoanalyzers. A thermoanalyzer is an instrument that allows the user to determine the amount of water in the sample being tested as well as certain other characteristics of the sample as the result of heating the sample to high temperatures. The thermoanalyzer at our client’s premises contained an asbestos paper separator between the “hot” portion of the instrument and the unheated side. The plaintiff testified that whenever he installed or performed service work on the thermoanalyzers, including the one at our client’s laboratory, he was exposed to friable asbestos from the paper separator as well as component insulation on vapor lines contained in the thermoanalyser. The plaintiff also contended that he was exposed to friable asbestos from an asbestos glove and asbestos pad that were provided with the thermoanalyzer. The plaintiff ultimately left his employment with the thermoanalyzer’s manufacturer and started his own business doing the same type of work, namely servicing various laboratory instruments, including thermoanalyzers. Significantly, the plaintiff alleged exposures at our client’s premises into the 1990’s. The plaintiff was diagnosed with mesothelioma, a rare type of cancer which is uniformly fatal and is, except in rare circumstances, a signature disease for asbestos exposure.

The plaintiff’s theory of liability as to our client was that because the thermoanlayzer in our client’s laboratory had asbestos in it, and further because the client had not provided a warning to the plaintiff regarding asbestos in the thermoanalyzers, that our client had breached its obligation to provide a safe workplace for tradesmen at its premises. As is typical in asbestos cases, it was not initially clear what theory of liability the plaintiff was pursuing. It was not until the plaintiff was deposed and additional discovery undertaken that it became apparent that the plaintiff was focusing on the alleged failure to provide a safe work place because of the asbestos containing components in the thermoanalyzer. The case was further complicated because it was filed in New Jersey, where the plaintiff lived, but our client’s premises were located in Pennsylvania. Thus, there was a question as to whether New Jersey or Pennsylvania law would apply. We argued that regardless of which state’s law was applied, as the premises owner, our client did not owe a duty of care to the plaintiff, an independent contractor, who was allegedly injured by the very piece of equipment on which he was hired to work.

The Plaintiff argued that the Olivo v. Owens – Illinois case, a New Jersey Supreme Court Case, required a premises owner to provide a reasonably safe place to work for tradesmen coming on to the owner’s premises, including an obligation to inspect for defective or dangerous conditions. The Olivo case was one in a series of cases in which the New Jersey courts were attempting to address premises liability in terms of a reasonableness standard as opposed to the traditional categories of trespasser, licensee, and invitee, all of which deal with the person’s status while on the premises. In Olivo, the New Jersey trial court granted summary judgment. The New Jersey appellate court reversed and held there were issues of fact regarding the degree of control the premises owner retained over the work, what safety information the premises owner provided, and what the premises owner told the contractor regarding the presence of asbestos on the premises. The Plaintiff argued that these were exactly the same issues in our case.

Dinsmore argued that Pennsylvania law applied (because the premises in question was in Pennsylvania) and in any event, Pennsylvania law was similar to that of New Jersey, namely, that a premises owner does not owe a duty of care to an independent contractor for dangers inherent in the work the independent contractor was hired to perform. Although the court did not overtly address the choice of law issue, it held that our client, the premises owner, did not owe a duty of care to plaintiff because the plaintiff was responsible for his safety on the equipment on which he was working. In granting our motion for summary judgment, the court focused on the premises owner’s lack of any supervision or control over the worked performed by the independent contractor. We also emphasized the independent contractor’s superior knowledge regarding the thermoanalyzer and its components.

Our Advice 

Facilities and equipment managers need to be alert that in facilities built or remodeled prior to the mid-1970’s, or equipment, even laboratory equipment, assembled prior to 1980 and where there was a need for thermal insulation, asbestos may still be present and care should be used in dealing with such equipment. Additionally, although waivers of liability, obtained from the tradesmen coming on the property may provide some legal protection, the facilities and equipment managers should make clear with the tradesmen, or the tradesmen’s employers, that they are being hired for their expertise and knowledge regarding the proposed work and that they are being relied upon to perform the work in a safe manner.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

 

What To Expect From a President Perry on the Environment? Some Texas-Sized Clues

Posted on August 19, 2011 in the National Law Review an article by Jim Morris and Evan Bush of Center for Public Integrity regarding  Texas Gov. and Republican presidential candidate Rick Perry’s environmental stance: 

From climate change denial to stances against EPA and Supreme Court, candidate resists feds, aids businesses and helped a billionaire donor

What would President Rick Perry’s environmental agenda look like?

As Texas governor, Republican presidential candidate Rick Perry often relied on Bryan Shaw, chairman of the state’s environmental regulatory agency, second from right. Harry Cabluck / Associated Press

For clues, one need only examine Perry’s record as governor of Texas, where the chairman of the state environmental agency writes vitriolic letters to the U.S. Environmental Protection Agency and questions the science behind climate change.

Bryan Shaw , a 2007 Perry appointee to the Texas Commission on Environmental Quality who became the agency’s chairman in 2009, opined in a guest column in the El Paso Times last month that a new EPA rule designed to reduce cross-state air pollution from coal-fired power plants was in fact “aimed at cutting Texas jobs, cutting Texas economic growth, increasing Texas energy costs, and harming Texas energy security.”

The column closely followed a statement by Perry himself, who called the rule “another example of heavy-handed and misguided action from Washington, D.C.”

Perry’s gubernatorial campaign received more than $5 million in contributions from energy companies and their employees during the 2009-2010 election cycle, according to data compiled by the nonpartisan National Institute on Money in State Politics . Among Perry’s largest contributors during the cycle: Houston oilmen Jeffrey Hildebrand and Gary Petersen , and Valero Energy Corp . Oil and gas companies consistently are among the state’s biggest polluters.

Perry recently told the Christian Broadcast Network that he prays for President Obama every day, asking in particular that “his EPA back down these regulations that are causing businesses to hesitate to spend money.”

Shaw, in June 30 testimony before the a Senate clean air and nuclear safety subcommittee, attacked another EPA rule meant to limit emissions of mercury and other toxic compounds from coal- and oil-fired power plants. Shaw maintained, among other things, that “any health benefits [from the rule] would be insubstantial compared to the cost of regulation” and expressed concern that “the reliability of the Texas electrical power system will be severely compromised.”

And in a testy letter to EPA Administrator Lisa Jackson and Regional Administrator Al Armendariz a year ago, Shaw and Texas Attorney General Greg Abbott said they would defy EPA regulations – stemming from a 2006  U.S. Supreme Court decision , Massachusetts v. EPA – requiring Texas to begin issuing permits for greenhouse gas emissions from industrial sources.

Shaw declined Wednesday, through a spokeswoman at the agency he chairs, to be interviewed byiWatch News . Catherine Frazier, a spokeswoman in the governor’s office, said “the governor is proud of [Shaw’s] leadership and expects he will put Texas’s interests at the top of his decision-making.”

Frazier said that Perry, like Shaw, finds the science linking human activities to climate change to be “very questionable.” The EPA, she said, “continues to impose burdensome, job-killing mandates on Texas and the governor believes there needs to be a balanced approach to protecting jobs and protecting the environment. Texas has created a model for how to accomplish that goal.”

Environmental activists in Texas say they grew worried about Shaw when he disclosed during his 2009 confirmation hearing that he didn’t believe the science on climate change was “fully settled.”

“He denies the science no matter what it is – climate change, ozone, mercury,” Jim Marston, director of the Environmental Defense Fund’s Texas office, said of Shaw. “All the other scientists around the world are wrong. Somehow, the laws of physics and chemistry don’t apply in Texas, apparently.”

“Adhering to the party line is [Shaw’s] guiding compass,” said Matthew Tejada, executive director of Air Alliance Houston , an environmental group that closely follows the commission Shaw chairs. “Every decision, policy, program or position that the TCEQ takes at the commission level is being guided by that compass – what can it do to strike back at an imaginary federal foe and what can it do to coddle industry here in the state.”

Shaw is a former associate professor in Texas A&M University’s Biological and Agricultural Engineering Department. His views on global warming contrast sharply with some of his former A&M colleagues – notably, the entire Department of Atmospheric Sciences, which declared in a statement several years ago that it is “very likely that humans are responsible for the recent warming.”

Loathsome though it may be to environmentalists, Shaw’s and Perry’s anti-EPA posture sits well with at least some members of the Texas business community.

“I think our political leaders in the state have done an excellent job protecting the environment while allowing the state’s economy to flourish in the past 10 years,” said Alex Mills, president of theTexas Alliance of Energy Producers. The EPA, under Obama, has “gone wacko,” Mills said, adding that a Perry administration would feature a “much more hands-off approach” to environmental regulation.

What some critics find most worrisome is Perry’s apparent willingness to reward major donors.

In 2009, the TCEQ approved a low-level radioactive waste dump for Andrews County in West Texas. The dump, expected to open next year, will accept waste from Texas and other states and be operated by Waste Control Specialists, owned by Dallas billionaire Harold Simmons.

Records show that Simmons and his wife have donated roughly $1.2 million to Perry’s campaigns since 1998, according to the National Institute on Money in State Politics. In 2004, Simmons helped finance the “Swift Boat” ads attacking the military record of Democratic presidential candidate John Kerry.

Karen Hadden, executive director of the Austin-based Sustainable Energy and Economic Development (SEED) Coalition , fought licensing of the dump, saying radioactive leakage threatens groundwater and could lead to serious transportation accidents. The term “low-level” is a misnomer, Hadden said; in fact, the dump will take everything but uranium fuel rods from nuclear power plants and plutonium components of nuclear bombs.

An eight-member TCEQ team unanimously advised against licensing the facility in 2007 but was overruled by top-level managers (not including Shaw). Three members of the team, including Glenn Lewis, left the agency in protest.

“We came to the conclusion that it was an unsuitable site geologically because of the immediate vicinity of groundwater,” Lewis told iWatch News . Nonetheless, he said, “We were immediately instructed to begin drafting a license” for Waste Control Specialists.

Asked if he believed Simmons’s relationship with Perry was behind the order, Lewis said, “I’m 99 to 100 percent sure. From the first day I reported for duty on this team, the other members were quite resigned to the fact that if Simmons is behind this, he’s going to get his license.”

The company and the candidate deny any favorable treatment.

“I think the record’s pretty clear there is absolutely no evidence of special treatment of any kind,” said Chuck McDonald, a Waste Control Specialists spokesman. “The licensing process was a long and arduous one. It took five years.”

Frazier, Perry’s spokeswoman, said the Andrews County dump “is supported by that community. It’s a project that will create jobs and bring them economic development opportunities.”

Questions also were raised about a 2005 Perry executive order expediting the state permitting process for coal-fired power plants. At the time, a Dallas-based utility and major Perry contributor, TXU, wanted to build 11 such plants; plans for eight of the 11 were scrapped in 2007 after TXU was acquired by two private equity groups.

In 2008, The Center for Public Integrity and Fort Worth Weekly reported that TXU’s coal plants exceeded federal emission limits nearly 650 times between 1997 and 2006, putting more than 1.3 million pounds of lung-damaging sulfur dioxide into the air.

A growing body of science suggests greenhouse gases produced by human activities – chiefly deforestation and the burning of fossil fuels – are responsible for shifting temperatures and other changes in climate across the globe that could threaten people and wildlife and exacerbate international frictions over scarce resources.

Reprinted by Permission © 2011, The Center for Public Integrity®. All Rights Reserved.

Power NY Act of 2011 Swings the Door Open for Renewable Development

Posted in the National Law Review on August 17, 2011 an article written by attorneys: David A. Domansky, Joseph G. Tirone and Brian J. Kelly of Bracewell & Giuliani LLP regarding Power NY Act of 20ll which Gov. Cuomo recently signed into law:

 

On August 4, 2011, Governor Cuomo signed into law the Power NY ACT of 2011 (A. 8510/S. 5844), a comprehensive energy bill that, among other things, reimplements and significantly revises Article X of the New York State Public Service Law. As revised, new Article X provides power project developers a more efficient, streamlined “one-stop” siting process. The new law was sought and supported by both business and environmental groups to remedy a patchwork of inconsistent local siting rules throughout New York, which have hampered project development efforts. Old Article X, which expired on January 1, 2003, was limited to power plants with 80-megawatts or more of nameplate generating capacity. New Article X reduces the capacity threshold to 25-megawatts, thereby allowing smaller generation projects, such as wind, solar and other renewable project developers, an opportunity to take advantage of the streamlined siting process.

Creation and Composition of the Review Board

Following the expiration of former Article X, developers were required to seek the requisite regulatory and environmental permits mandated by state and local laws from the various state and municipal regulatory authorities who had jurisdiction over the site where the proposed power project was to be developed. Under new Article X, the siting and licensing of electric generation facilities of at least 25-megawatts, or the increase in nameplate capacity by 25-megawatts or more of a current power facility, will fall within the purview of the New York State Board on Electric Generation Siting and the Environment (“Board”).The seven member Board will consist of five state agency officials (Department of Environmental Conservation, Department of Economic Development, Department of Health, Department of Agriculture and Markets and the New York State Energy Research and Development Authority), as well as two ad hoc members who are required to reside in the community in which the proposed facility is to be located. The Board will be tasked with determining if the contemplated project should receive a Certificate of Environmental Compatibility and Public Need (“Certificate”), which must be obtained before commencement of any site development or facility construction.

Filing Process

New Article X separates the Certificate process into two distinct phases, a pre-application preliminary scoping statement (the “Pre-Application”) and the actual Certificate application. In  the Pre-Application, an applicant is required to provide the Board with, among other things: (a) a description of the proposed facility and its environmental setting; (b) potential environmental and health impacts resulting from the construction and operation of the proposed facility; (c) proposed studies or programs of studies designed to evaluate the potential environmental and health impacts; (d) measures proposed to minimize environmental impacts; and (e) identification of all other state and federal permits required for the construction, operation or maintenance of the proposed facility.

Prior to submission of the Pre-Application, the applicant must meet with interested parties, including community groups and interested state agencies to address these groups’ concerns  with regard to the proposed facility. Following the applicant’s submission of the Pre-Application, the applicant has the ability to enter into side agreements or stipulations to address any concerns regarding the siting and location of the proposed facility. Once completed, the applicant is then required to file a Certificate application with the Board, which includes: (a) a description of the site and facility to be built; (b) an evaluation of the anticipated environmental and health impacts and safety and security ramifications that the facility will have on the surrounding community; (c) a comprehensive environmental impact analysis; and (d) a comprehensive demographic, economic and physical description of the community within which the facility is to be located, compared and contrasted with the county and with the adjacent communities in which the facility is proposed.

Board Decision Process and Timeline

New Article X requires that the Board issue a final decision on a Certificate application no later than: (a) 12 months after submission of a Certificate application deemed complete by the Board for a new-build facility, and (b) six months after the submission of a complete Certificate application deemed complete by the Board for modifications to (1) an existing facility, or (2) the site of a new facility adjacent or contiguous to an existing facility, provided the new facility would result in greater operating efficiencies and lower environmental impact than the original facility.

New Article X also requires that the Board schedule a hearing on the Certificate application no later than 60 days after the date the Board determines the Certificate application is complete. After conducting and taking testimony at the hearing, the Board may grant the Certificate if it finds that: (a) the facility is a beneficial addition to or substitution for the electric generation capacity of New York; (b) the construction and operation of the facility will serve the public interest; (c) the facility’s environmental impact has been minimized or eliminated to the maximum extent practicable; and (d) the facility complies with all state and local laws and regulations.

Any appeal of the Board’s decision denying or granting a Certificate is first heard by the Board itself. The application for rehearing must be filed no later than 30 days after issuance of the Board’s decision. The Board is required to render a decision on the application no later than 90 days after the expiration of the period for filing rehearing petitions. Thereafter, an aggrieved party may seek judicial relief in the Appellate Division of the New York Supreme Court. Such proceeding must be initiated within 30 days after the issuance of a final decision by the Board on the application for rehearing.

© 2011 Bracewell & Giuliani LLP

Doing Business at ART HK: Better, Bigger, Faster, Stronger

Recently posted in the National Law Review an article by Sheppard, Mullin, Richter & Hampton’s Art Law Practice regarding the Hong Kong International Art Fair:

 

On the verge of becoming an international institution, the recent Hong Kong International Art Fair, known as “ART HK,” represents an exciting development in the state of the art world in China. This growth has critical, yet profoundly inspiring, implications upon the international art community.  Since its humble beginnings in 2008, ART HK has shown rapid growth with over 260 galleries from over 38 countries participating in the recent fair.  Momentum of ART HK’s success and prominence was recently propelled by an announcement that MCH Swiss Exhibition, owners of Art Basel, the world’s biggest contemporary art fair, have just signed an agreement with Asian Art Fairs, the owners of ART HK, to purchase a majority stake in ART HK, which went into effect on July 1, 2011.  This tactical move, combined with rising auction revenue, favorable tax considerations, a newfound interest in art as an asset class, and interest based on national identity, cements China’s role in the global art market.

It was recently reported in Artprice.com, a French-based data service, that China ranks number one in fine art auction revenue, surpassing the U.S.  Moreover, the contemporary Chinese auction market has grown from just below $1 million in 2002 to $167.4 million in 2010. Prominent auction houses, Sotheby’s and Christie’s Hong Kong have seen sales turnover increase by 300% between 2009 and 2010.  The total auction sales value (all categories) for both auction houses in Hong Kong rose by 122 percent, from US$658 million in 2009, to US$1.46 billion in 2010.  Even mainland Chinese state-owned auction houses, such as Poly and Guardian, have seen their Chinese sales seasons grow from $397 million in 2009 to $2.2 billion in 2010.  This year is also set to become a record year in light of the sale of the Ullen Collection at Sotheby’s Hong Kong in April 2011.

The art world focus in Hong Kong, as opposed to mainland China, may have something to do with the tax advantages it provides.  While imported art is taxed by mainland China at a steep 34 percent, Hong Kong offers collectors the advantage of more relaxed sales tax and export policies. Organizers of ART HK are aggressively promoting the incredible tax advantages, since there are no tariffs on the import or export of art as it relates to the initial sale at ART HK.

A newfound interest in art as an asset class has also prompted growth in the Chinese art market.  The affluent in China have begun to invest in art as an asset, traditionally viewed as a Western luxury.  Observers note that the proliferation of art in China is the steady result of a rise in investment-oriented purchases of art, bolstered by China’s growing wealth, and not merely spontaneous overnight purchases.  In response to this, at least three Chinese financial institutions have set up hedge funds investing in Chinese art.  Notably there have been a succession of Chinese clients who have been spending millions of yuan recently at New York auctions.

National identity and pride is showing itself to be another significant factor behind the surge of Chinese interest in the art world.  Such national pride is evident by a report released by Artprice.com on March 19, 2011 showing that 2010 is the first year that four Chinese artists (Fu Baishi, Qi Baishi, Xu Beihong, and Zhang Daqian) have ranked in the top ten of global art auction earners.

In China, the impact of art fair culture through ART HK is no different than in other emerging markets.  Art Basel is itself is a pioneer for developing new markets.  In fact, in 2002, the decision to open Art Basel Miami Beach in the U.S. was partly to explore the emerging Latin American market.  A roaring success – Art Basel Miami provides a new platform for emerging dealers, contemporary artists, new collectors and the art world cognoscenti.

Popularity of the Chinese market for the international art community during ART HK has clearly prompted auction houses to be active.  For example, Christie’s has a partnership with ART HK to hold its spring auctions in the same venue and at the same time as ART HK with sales of art, antiques, wines, watches and jewels.  Other auction houses, particularly smaller Asian ones, are similarly following suit with auction sales planned at hotels around town during ART HK.

On May 23, 2011, ART HK and ArtTactic even announced in two art market reports (China Contemporary Art Market Report 2011 and US & Europe Contemporary Art Market Report 2011) that confidence in the Chinese contemporary art market greatly exceeds confidence in its US and European counterparts.  In fact, the reports claim that 75% of art industry experts indicate that the Chinese market will continue to grow over the next six months, compared to only 36% of art experts indicating growth in the US and European contemporary art markets.

Hong Kong offers a range of comforts for those doing business in the Hong Kong art market. In addition to the tremendous tax advantages in the  importation or exportation of art in Hong Kong, doing business in Hong Kong is made easier by the fact that English is commonly spoken and that Hong Kong adheres to international standards of business law, with a great degree of transparency in transactions. Moreover, in contrast to Shanghai or Beijing, the logistics of obtaining shipments in and out of Hong Kong do not typically involve lengthy turnaround times.

When exporting artwork from Hong Kong, buyers must ensure to complete and submit an export declaration in Hong Kong, as well as an import declaration in the destination country, where import duties and taxes are typically chargeable in the destination country. Where the buyer is shipping the artwork to the same country that the seller originally exported it to Hong Kong from, it may be possible for the buyer to avoid payment of import customs duty in the destination country under a “returned goods relief” procedure, as long as the seller can provide the buyer with the relevant proof of original export.

There are many factors contributing to the strength of China’s position in the international art market, including its beneficial tax considerations, remarkable auction revenue, a newfound interest in art within China as either an investment or because of national identity and a global interest in contemporary Chinese artists.  With offices in Shanghai and Beijing, these are issues encountered frequently here at Sheppard Mullin. Overall the future of the Chinese art world looks optimistic, and it is clear that the impact of the art fair culture, especially vis-à-vis ART HK, has a crucial role to play in this continued growth.

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.