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Court: EPA must rewrite utility mercury rule
Environmental | 2008/02/11 01:19
In a victory for environmentalists and a setback for big U.S. coal-burning utilities, a federal court ruled on Friday that the Environmental Protection Agency must fundamentally rework its mercury rules for utilities.

The U.S. Court of Appeals for the District of Columbia ruled that the EPA violated the Clean Air Act in 2005 when it exempted coal plants from the strictest emission controls for mercury and other toxic substances like arsenic, lead and nickel.

The EPA's "Clean Air Mercury Rule" would have created a "cap-and-trade" program to allow utilities to swap rights to emit mercury to comply with overall limits that would reduce nationwide emissions by 70 percent by 2018.

Some 14 states, including New York and California, sued the EPA over the rules, along with environmental and public health groups.

The court ruling means that big coal-burning utilities like Atlanta-based Southern Co and American Electric Power of Columbus, Ohio, will have to install expensive mercury-reduction equipment at more of their power plants rather than rely on a fleet-wide trading program.

The ruling adds to the U.S. backlash against building coal-fired power plants, which are also a major source of heat-trapping carbon dioxide emissions.

Wall Street banks including Citigroup Inc, JP Morgan Chase & Co and Morgan Stanley this week issued standards that weigh carbon dioxide and mercury emissions when determining whether to lend money for new power plants.

"This adds to the momentum against building new coal-fired power plants," said John Walke, attorney with the Natural Resources Defense Council, which participated in the lawsuit. "This immediately changes the landscape and adds to the argument against new pulverized coal plants."



Judge rejects Bush decision over Navy sonar use
Environmental | 2008/02/06 07:35
A Los Angeles judge has rejected a decision by President George W. Bush allowing the Navy to use sonar equipment accused of endangering marine life, stating there was no emergency to justify over-riding existing environmental laws, court documents showed Tuesday.

In a 36-page opinion, US District Judge Florence Marie Cooper said the Navy must now abide by a previous order which outlawed the use of submarine-hunting sonar in areas off the coast of California known to be populated by whales.

Environmental groups say the equipment is potentially harmful to marine mammals, citing cases in the Bahamas and Canary Islands where sonar has been linked to mass deaths of whales.

Last month Bush granted an exemption to the Navy over use of sonar, arguing it was vital for military preparedness exercises which were in the "paramount interest of the United States."

The decision allowed the Navy to ignore a January 3 injunction requiring it to "monitor for and avoid marine mammals while operating high-intensity, mid-frequency sonar during ... naval exercises."

In her ruling, Cooper suggested Bush's attempt to skirt the earlier court order was "constitutionally suspect."

She also dismissed the argument put forward by the Navy that the lives of its sailors depended on being properly skilled in hunting submarines from hostile nations.

"The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion," Cooper wrote.



EPA looking at a full plate this year
Environmental | 2008/01/28 05:27
The Environmental Protection Agency has a busy calendar in 2008 with possible rulemakings and proposed regulations on airborne lead, underground carbon dioxide storage and fuel standards in the works.

But as the agency deals with these and other environmental concerns, a single, divisive issue has crept into nearly every agency discussion and proceeding: emissions regulations.

"2008 could be an unexpectedly busy year for EPA," according to a policy brief from Van Ness Feldman, a Washington, D.C. law firm. "It will be drafting a registry rule while finalizing a low carbon fuel standard and federal vehicle standards. At the same time, it will face legal challenges from California and the other states whose vehicle regulation plans it thwarted."

The reference to California is at the heart of the agency's latest run-in with lawmakers over emissions regulations. The EPA informed California Governor Arnold Schwarzenegger, a Democrat, late last year that it planned to deny the state's request to impose strict carbon dioxide emissions standards on vehicle tailpipe emissions, which contribute to global warming.

The hot-button issue of climate change and the question of how aggressively the government should work to regulate greenhouse gas emissions are dominating the regulatory and policy landscape and have turned the agency's interactions with Congress into high political drama.

The matter came to a head recently when a Senate panel swore in EPA Administrator Stephen Johnson and took turns drilling the official on his decision denying California's request. Fences weren't mended as Johnson calmly and repeatedly defended his decision.

Jeffrey Holmstead, a 20-year veteran of EPA who also headed the agency's office responsible for overseeing clean air issues, said a 2007 Supreme Court ruling against the agency for refusing to regulate new-vehicle emissions means that the agency will continue to wrestle with emissions regulations at every turn.

"That really dominates everything that goes on now," Holmstead said. "And it's certainly going to affect everything EPA does...as far forward as you can imagine...probably for the next 20 years."


Climate change conference aims for pact by 2009
Environmental | 2007/12/15 10:37
World leaders overcame bitter divisions on Saturday over how to fight global warming and agreed to reach a new deal by 2009.

The contentious, two-week U.N. climate conference on the resort island of Bali ended with the United States, facing angry criticism from other delegations, relenting in its opposition to a request from developing nations for more technological help fighting climate change.

The new deal does not commit countries to specific actions against global warming. It simply sets an agenda and schedule for negotiators to find ways to reduce pollution and help poor countries adapt to environmental changes by speeding up the transfer of technology and financial assistance.

Despite an aggressive campaign led by the European Union to include specific emissions reduction targets for industrial nations — by 25 to 40% below 1990 levels by 2020 — the final road map has none.

The guidelines were eliminated after the United States, joined by Japan and others, argued that targets should come at the end of the two-year negotiations, not the beginning.



Fed Judge Says California Can Regulate Auto Emissions
Environmental | 2007/12/14 02:28

California can set its own standards on greenhouse-gas emissions from vehicles, a federal judge in Fresno has ruled, The San Jose Mercury News reports. The state still needs permission from the U.S. Environmental Protection Agency to implement the rules.

This is the second time this year that courts have ruled against the auto industry’s bid to stop regulation of tailpipe emissions by states. In September, a court decision in Vermont confirmed that states do have the ability to adopt California’s motor vehicle greenhouse gas emissions standards. Sixteen states comprising about 45 percent of all U.S. auto sales have adopted, or are in the process of adopting, California’s standards. The Vermont decision came on the heels of a U.S. Supreme Court ruling last April saying the U.S. EPA has the authority to regulate greenhouse gases.

California has filed a lawsuit against the EPA for failing to act on California’s tailpipe emissions waiver request.

California is the only state that can set its own vehicle pollution standards because it began regulating air pollution before the EPA’s creation. Under the Clean Air Act, however, other states can select either California’s rules or federal ones.



California Wins Emissions Battle with Automakers
Environmental | 2007/12/12 11:42
California won a major legal battle Wednesday in its fight to implement a global-warming law that would lead to steep increases in motor vehicle fuel economy.

A federal judge in Fresno tossed out a lawsuit filed by the world's major automakers that tried to overturn AB 1493, a law that requires a 30 percent reduction in greenhouse gas emissions by 2016.

The automakers had said the law was unconstitutional because it mandated a big jump in mileage standards - a matter that is under the authority of the U.S. Department of Transportation's National Highway Traffic Safety Administration. They further argued that the California standards would raise vehicle prices by as much as $6,000 per vhicle, leading to fewer sales and tens of thousands of auto-plant layoffs.

But U.S. District Judge Anthony Ishii rejected those claims, ruling that the goal of reducing greenhouse gas emissions and arresting climate change must go forward.

The judge's decision doesn't mean the law automatically takes effect. California still needs a waiver from the U.S. Environmental Protection Agency to implement AB 1493.

Last month the state sued the EPA to force a decision on its waiver request. On Wednesday EPA spokeswoman Jennifer Wood said the federal agency will rule on the request by the end of December. If the EPA turns down California's request, Gov. Arnold Schwarzenegger and other state officials have vowed to sue the government again.

The Fresno decision came as climatologists and policymakers, including many from California, convened in Bali, Indonesia, to hammer out a worldwide treaty on curbing greenhouse gas emissions.

State officials and environmentalists have said AB 1493 can be implemented using largely off-the-shelf technology. They say the additional cost per vehicle is probably no more than $1,800.

The Alliance of Automobile Manufacturers, responding to the decision, continued to criticize the California law, saying, "We need a consistent national policy for fuel economy, and this nationwide policy cannot be written by a single state or group of states - only by the fedeal government."

The alliance noted that leaders of Congress, working on a new federal energy bill, recently agreed to raise fuel economy standards for all vehicles from an average 25.3 mpg to 35 mpg by 2020. The bill has passed the House but not the Senate, and may run aground because of issues not related to fuel economy.

The judge's decision was greatly influenced by two earlier court cases. Last spring the U.S. Supreme Court ruled that the federal EPA had the duty to regulate greenhouse gases. More recently, a federal judge in Vermont threw out the automakers' lawsuit over a copycat law.

Vermont is one of 11 states that have adopted California's standards; five others are considering doing so. But all are on hold pending the EPA's decision on California's waiver request.

Environmentalists hailed Judge Ishii's ruling. "We keep winning," said David Bookbinder, a lawyer with the Sierra Club, which participated in the case. "The courts are simply not buying (the automakers') arguments."

He said he wouldn't be surprised if the automakers file an appeal, adding: "Sooner or later they're going to have to stop throwing lawyers at the problem and start hiring engineers."


Nixon Peabody Names First Sustainability Officer
Environmental | 2007/11/14 14:00
The Legal Newswire - International law firm Nixon Peabody LLP announces the appointment of a Chief Sustainability Officer. Carolyn S. Kaplan, an attorney in the firm’s energy and environmental practice, will serve in the new role. Nixon Peabody is the first in the legal industry to establish such a position, although many of the firm’s clients and global industries have done so as part of corporate commitments to sustainability.

Ms. Kaplan has almost two decades of experience with environmental protection and renewable energy projects. She counsels her clients on an array of issues that impact development projects and facilities, including environmental impact review, wetlands, tidelands licensing, storm water, water supply, land use, and hazardous waste site assessment and remediation. Ms. Kaplan co-chairs the firm’s Renewable Energy Team and has assisted clients on a variety of renewable energy projects, including the siting of land-based and offshore wind facilities. In her role as Chief Sustainability Officer, she will work closely with Nixon Peabody’s operations director to further reduce the firm’s carbon footprint and implement internal green initiatives, as well as to look for opportunities to partner with clients and potential clients on joint sustainability activities. The firm hopes that all of its personnel will become involved to identify innovative ways to improve the sustainability of its own activities and to advise clients in this rapidly growing sector. While serving as Chief Sustainability Officer, Ms. Kaplan will continue her legal practice in energy, environmental and land use law.

“This new position reflects our commitment to implement sustainable principles at every opportunity in our firm. We are supporting the commitment to sustainable practices that our clients are adopting and implementing,” said Harry P. Trueheart III, Chairman and Managing Partner of Nixon Peabody. “Although many law firms have separate practices that occasionally serve sustainable clients needs, at Nixon Peabody, we combine our legal experience, thought leadership, and good citizenship to serve our clients as very few other law firms can. With Carolyn serving as Chief Sustainability Officer, we intend to take our firm wide green initiative to the next level.”

For years, Nixon Peabody has been taking important steps towards sustainable business practices. Earlier this year, the firm announced the opening of its first green office in San Francisco which is a model of sustainable design, green building techniques, and a healthy work environment. The office has been certified by the United States Green Building Council under the program for Leadership in Energy and Environmental Design (LEED) making Nixon Peabody the first law firm in the U.S. to be LEED-certified in the category of "Commercial Interiors." The category includes all pre-existing office buildings and commercial space. In the coming months, other Nixon Peabody offices will also pursue LEED-certification. By establishing this position, the firm can achieve even greater progress. For example, all of the firm’s offices are implementing sustainability programs, adopting waste minimization practices, switching to eco-friendly building materials and cleaning products, and identifying other ways to reduce the firm’s carbon footprint.

“I’m proud to serve in this new role at Nixon Peabody,” said Ms. Kaplan. “In addition to improving our own performance, I believe we can assist our clients to achieve their business goals while attaining the best environmental result. I will be working with our attorneys and staff to identify sustainability efforts already underway within the firm, and to help develop plans to drive these efforts forward firm wide.”

Ms. Kaplan is an active member of the American Wind Energy Association (AWEA), serving on AWEA’s Siting Committee and Offshore Wind Working Group. She is active in the New England Environmental Business Council (EBC) and served as a co-chair of the EBC’s public policy committee. Ms. Kaplan has moderated and served on numerous panels involving renewable energy topics and she has published several articles on wind energy. She co-authors the renewable energy section of the biannual report for the American Bar Association’s section of Public Utility, Communications and Transportation Law (PUCAT). Ms. Kaplan received her J.D., cum laude, from Boston College Law School and she earned her B.A. from Cornell University.

About Nixon Peabody

Nixon Peabody LLP is one of the largest law firms in the United States and is recognized by American Lawyer Media as a "Global 100" firm. With 700 attorneys collaborating across 25 major practice areas in 17 office locations, including Boston, Chicago, London, Los Angeles, New York City, Rochester, San Francisco, Silicon Valley, and Washington, DC, the firm’s size, diversity, and advanced technological resources enable it to offer comprehensive legal services to individuals and organizations of all sizes in local, state, national, and international matters. Nixon Peabody has been recognized by FORTUNE magazine as one of its “100 Best Companies To Work For®” in 2007 for the second consecutive year. The firm has also been named to the Human Rights Campaign’s 2007 “Best Places To Work For GLBT Equality” list.


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