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GHG REGULATION & LITIGATION Update

GHG REGULATION & LITIGATION Update. Peter Glaser Southeast Air Quality Conference Atlanta, GA October 4, 2007 . Regulatory/Litigation Issues. EPA State GHG Regulatory Efforts Tort Lawsuits Financial Disclosure Issues Motor Vehicle GHG Issue Other Issues. Are GHGs a CAA Pollutant?.

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GHG REGULATION & LITIGATION Update

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  1. GHG REGULATION & LITIGATIONUpdate Peter Glaser Southeast Air Quality Conference Atlanta, GA October 4, 2007

  2. Regulatory/Litigation Issues • EPA • State GHG Regulatory Efforts • Tort Lawsuits • Financial Disclosure Issues • Motor Vehicle GHG Issue • Other Issues

  3. 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 - No non-endangerment policy factors allowed - Scrutiny on endangerment finding

  4. Potential Ramifications • Case not just about motor vehicle emissions • Large Stationary Sources • Remand of New York v. EPA - NSPS • PSD/NSR – are GHGs currently “subject to CAA regulation? • NAAQS? • Congress?

  5. STATE LEGISLATION • CA and MN legislation regulates out-of-state emissions • RGGI • Western Climate Initiative

  6. 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

  7. 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.”

  8. 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

  9. 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.

  10. Can States Regulate Motor Vehicle Tailpipe GHGs? • Clean Air Act gives CA authority to set more stringent tailpipe emissions standards, allows other states to adopt CA standards – EPA waiver required • CARB establishes GHG emissions standards – about a dozen states follow suit, including VT • EPA Waiver • Lawsuits: preemption by CAFE • VT Court: upholds state

  11. OTHER • Extent to which global warming should be considered in EIS (DM&E Railroad, Border Transmission Line, OPIC / Export-Import Bank financing) • Rural Utilities Service • Polar Bear Endangered Species • Federal Endangered Species Petition

  12. Peter Glaser Troutman Sanders 401 9th Street, N.W., #1000 Washington, D.C. 20004 202-274-2998 peter.glaser@troutmansanders.com

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