ghg litigation peter glaser climate challenges in the sunshine state orlando, fl february 13, 2008

GHG LITIGATION

Peter Glaser

Climate Challenges in the Sunshine State Orlando, FL

February 13, 2008

Litigation Issues• EPA/CAA – “Endangerment” and CAA

Regulation?• PSD Morass• Tort Lawsuits• Will Anyone Challenge State GHG Regulatory

Efforts?• Financial Disclosure Issues• Other Issues

Are GHGs a CAA Pollutant?• Supreme Court: 5-4 Yes• Statute: broad definition of “air pollutant” and “air

pollution”• Ruling does not mandate regulation• Remand: Endangerment• Discretion

- May EPA consider factors other than science?- Scrutiny on scientific findings

Context – Not Just About Autos

• NSPS: New York v. EPA Remand• Other Petitions/NSPS• NAAQS?• PSD Context – Motor Vehicle CO2 Regulation Will Make

CO2 a Regulated NSR Pollutant - Any new source emitting more than 100/250 tpy CO2 must obtain a PSD permit- Any existing source emitting more than 100/250 tpy CO2 making a modification increasing CO2 emissions by ANY amount must obtain a PSD permit

Where Things Stand

• Enactment of Energy Bill

• Denial of CA Waiver

• Intense Lobbying on PSD Impacts

• What Will EPA Do Next – and Is There Time?

PSD MORASS – IS CO2 ALREADY A REGULATED POLLUTANT?

• EAB Cases

• State PSD Cases

• Sunflower – State law

• Settlements - Duke

TORT LIABILITY? NOT YET

• NY: 8 States sue 5 utilities over GHG emissions from powerplants in 20 states – seeks injunction - case dismissed – appellate decision expected shortly

• MS: Individual property owners sue large number of energy/chemical companies alleging GHGs exacerbated Katrina – sought damages – case dismissed 8/30/07 – on appeal

• CA – AG sues autos – seeks damages – case dismissed 9/17/07

BASIS FOR DECISION: POLITICAL QUESTION

“While at times, some judges have become involved with the most critical issues affecting America, political questions are not the proper domain of judges.”

WILL ANYONE CHALLENGE STATE GHG REGULATORY EFFORTS?

• State Electricity Import Bans

• State GHG Requirements

• Interstate Compacts

GHG FINANCIAL DISCLOSURE

• 9/14/07 NY AG Cuomo issues subpoenas against 5 energy companies seeking information on companies’ potential financial liabilities from GHG emissions and whether they have been adequately disclosed

• Implies failure to adequately disclose could be violation of NY law as misrepresentation or fraud

SEC PETITION

• 9/18/07 – Large institutional investors, state AGs, 11 state pension funds, environmental groups

• Seeks: “Interpretive guidance clarifying registrants’ obligation under existing regulations to disclose material information concerning the effect of climate change and regulation of greenhouse gas emissions upon their financial condition and business operations.”

• Also seeks immediate review of adequacy of climate change risk disclosures for companies filing 10-Ks and 10-Qs.

OTHER

• Extent to which global warming should be considered in EIS

• Rural Utilities Service

• Endangered Species

• Auto State Litigation

Peter GlaserTroutman Sanders401 9th Street, N.W., #1000Washington, D.C. 20004202-274-2998peter.glaser@troutmansanders.com