Marten Law: Climate Change: The Year Ahead

 By Svend Brandt-Erichsen and Dustin Till, Attorneys, Marten Law PLLC

In this Emerging Issues commentary, Svend Brandt-Erichsen and Dustin Till, attorneys for Marten Law PLLC, discuss the EPA rules regarding greenhouse gases (GHGs) that took effect on January 2, 2011. The rules require limits on GHGs to be included in air permits issued for new power plants and other emission sources. They write:

Excerpts:

"In the upcoming year, the U.S. Court of Appeals for the District of Columbia will likely resolve a multitude of challenges to EPA's greenhouse gas rules. At least 80 lawsuits have been filed by over 35 petitioners (including states, industry groups, environmental NGOs, and others) challenging the four rulemakings that form the backbone of EPA's greenhouse gas regulatory program."

"Bi-partisan Congressional challenges to EPA's greenhouse gas rules have stalled-at least for the time being. Last fall, Republican opponents of EPA's greenhouse gas regulations threatened to add an amendment to EPA's fiscal year 2011 budget that would have restricted the agency from implementing those regulations for up to two years, but those efforts fell short. Senator Rockefeller (D-WV) has also floated legislation that would similarly delay EPA's ability to implement greenhouse gas regulations. Senator Rockefeller, however, announced in mid-December that he would abandon his efforts to stay EPA's rules until the new Congress convenes in January 2011."

"The federal Clean Air Act requires the states to take primary responsibility for implementing the permitting programs and other requirements that apply to individual air emission sources. To that end, each state was required years ago to develop a State Implementation Plan (SIP), which had to be approved by EPA. EPA must approve each change to a SIP, and once approved its provisions become enforceable by EPA. EPA also may require states to correct perceived deficiencies in their SIPS, and if a state fails to do so, may issue a Federal Implementation Plan (FIP) to address the deficiency until the state acts."

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Svend Brandt-Erichsen, a partner at Marten Law PLLC, practices in Alaska and Washington, and has been an environmental lawyer for nearly 20 years. As a lawyer with the Marten Law PLLC, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest.