Top Five Bloomberg BNA 'Energy and Climate Report' Stories for the Week Ending March 7


The top story for the week ending March 7 was on the appointment of a new general counsel for the White House Council on Environmental Quality, followed by three stories related to the regulation of carbon dioxide from power plants and a fifth story on a Defense Department review warning of threats posed by climate change.

1. Former EPA Attorney to Join White House Council on Environmental Quality as Counsel

As covered in this March 5 story, Brenda Mallory was named by the White House to be general counsel for CEQ starting in April.

She previously served as the Environmental Protection Agency's acting general counsel and principal deputy general counsel, among other leadership roles at the EPA, as well as 17 years in private practice.

“Brenda brings 28 years of experience that will support our work to cut carbon pollution, build a clean energy economy, and protect our air, land and water,” Mike Boots, acting chairman of the CEQ, said in a blog post.

“I look forward to working with her to continue driving progress toward the President's commitment to addressing climate change, protecting the places and natural resources Americans care about, and supporting healthy, prosperous communities,” Boots wrote.

Mallory is a 1983 graduate of Columbia Law School and a 1979 graduate of Yale College, the CEQ said.

2. Decision on GHG Permitting Program May Indicate Deference Agency Can Expect

How the U.S. Supreme Court resolves challenges to the EPA's greenhouse gas permitting program could be an indication of the deference the agency can expect when it begins regulating power plants, according to comments by attorneys covered in this March 6 story.

Several industry groups and some states have challenged the EPA's prevention of significant deterioration and Title V permitting requirements for greenhouse gas emissions from large stationary industrial sources. The EPA has argued that it was required by the Clean Air Act to issue permits for greenhouse gases after it issued emissions standards for passenger vehicles.

The Supreme Court heard oral argument in the case Feb. 24 (Util. Air Regulatory Grp. v. EPA, U.S., No. 12-1146, oral arguments 2/24/14).

The high court's decision isn't expected to affect the EPA's ability to set standards for new power plants under Section 111 of the Clean Air Act, attorneys said at a forum sponsored by the Environmental and Energy Study Institute.

However, Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School, said the EPA is evaluating whether it could propose emissions standards for existing power plants that would give facilities credit for emissions reductions achieved off-site through energy efficiency programs for consumers or investments in renewable energy.

“The decision we get from the Supreme Court from the case that was just argued will be a good indicator of just how much flexibility the EPA will have when it issues the much more important Section 111(d) regulations [for existing power plants],” Gerrard said.

3. Report Says Efficiency Programs Could Drive Carbon Dioxide Standards for Existing Plants

Carbon dioxide emissions reductions achieved through energy efficiency programs could be used to set performance standards for existing power plants, according to a report from Harvard Law School covered in this March 4 story.

The EPA will propose emissions guidelines for carbon dioxide from existing power plants in June as part of President Barack Obama's climate action plan. The standards, to be issued under Section 111(d) of the Clean Air Act, would be administered by state air pollution regulators.

Section 111(d) requires that the emission guidelines represent the “best system of emission reduction.” That term is broad enough to include offsite energy efficiency programs, according to the report “Efficiency Rules: The Case for End-Use Energy Efficiency Programs in the Section 111(d) Rule for Existing Power Plants” from the Environmental Law Program at Harvard Law School. 

“This definition does not limit EPA's consideration of emission reduction systems to those that are implemented at a source or facility,” the report said. “To the contrary, the breadth of the ‘best system of emission reduction’ and the fact that the Clean Air Act provides no definition for this term implies a broad delegation of authority, providing EPA with flexibility in setting and approving performance standards. The definition's multi-factor balancing test provides some guidance, while enabling the agency and the States to craft cost-effective standards that make sense for each source category.”

4. McCarthy Trip to North Dakota Includes Assurances on Power Plant Carbon Rules

The EPA will not overstep the authority delegated to it by Congress when it pursues carbon dioxide emissions standards, according to remarks by agency Administrator Gina McCarthy, which are covered in this story on a trip she made to North Dakota Feb. 28.

“The EPA is staying in its lane,” McCarthy said. “We're looking at carbon as a pollutant. We're looking at the Clean Air Act. We're applying that hopefully as flexible as we can.”

McCarthy visited North Dakota at the request of the state's congressional delegation to discuss the agency's upcoming new source performance standards for carbon dioxide emissions from power plants as well as its proposal to reduce the renewable fuel blending mandates for 2014.

Sen. John Hoeven (R-N.D.), meanwhile, expressed concern that the EPA would be overstepping its Clean Air Act authority in issuing the power plant rules. Congress has already rejected legislation that would have established a cap-and-trade program for power plants, he told reporters during McCarthy's visit.

5. Defense Department Calls Climate Change Threat Multiplier; Could Alter Missions

The effects of climate change will lead to increased food prices, exacerbate water scarcity and increase competition for limited resources that will place additional burdens on economies and governments around the world, the Defense Department wrote in its Quadrennial Defense Review that is the topic of this March 5 story.

Climate change also is likely to increase the frequency, scale and complexity of future defense missions, while also potentially compromising the ability of domestic defense sites to support training missions, according to the review.

“These effects are threat multipliers that will aggravate stressors abroad such as poverty, environmental degradation, political instability, and social tensions—conditions that can enable terrorist activity and other forms of violence,” the Defense Department said.

Statements about climate change from the Defense Department, the nation's largest consumer of energy, have increased over recent years. The previous quadrennial review, in 2010, devoted an entire section to the role climate change would play in increasing conflicts and global instability.

Defense Secretary Chuck Hagel said in November 2013 that climate change does “not directly cause conflict, but it can significantly add to the challenges of global instability, hunger, poverty and conflict.” 


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