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Senate Cap and Trade Greenhouse Gases Climate Bill Faces Conflicts with House ACES Bill and States Powers

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

“Senators Kerry and Lieberman released their much-anticipated cap and trade legislation on May 12, 2010. The Kerry-Lieberman bill takes its place alongside H.R. 2454, the American Clean Energy and Security Act (ACES), enacted by the House in June, 2009. If it becomes law, electric utilities will have to buy the right to emit greenhouse gases (GHGs), and gasoline and fuel distributors (and/or their customers) will pay the government for the carbon content of their fuels,” write Svend Brandt-Erichsen and Dustin Till. “The bill would take effect in 2013, with additional requirements extending to industrial sources and natural gas suppliers by 2016. Despite its seemingly long odds of passage, the public release of this bill marks a significant milestone in Congressional consideration of climate change legislation.”

“The centerpiece of the wide-ranging Kerry-Lieberman bill is a cap-and-trade program designed to reduce the nation's GHG emissions 17 percent by 2020 and 80 percent by 2050,” explain Brandt-Erichsen and Till, attorneys at Marten Law PLLC. “The bill has many similarities to the House bill, H.R. 2454. Some significant House provisions, such as a national renewable energy standard for utilities, do not appear in the Kerry-Lieberman bill, but are contained in a bill that was reported out last summer by the Senate Energy Committee and is likely to be merged with Kerry-Lieberman before the legislation reaches the Senate floor.”

In this commentary, the authors first outline the key provisions of the Kerry-Lieberman bill in the Senate. They then provide a comparison with House of Representatives passed climate bill, including greenhouse gas reductions, distribution of emissions allowances, emission offset credits, carbon market regulation, offshore oil and gas exploration and development, and other critical environmental issues.

Brandt-Erichsen and Till next discuss the key issues that will be debated in the Senate, including the power of the various states to enforce their own greenhouse gas limits. The authors conclude with a set of Practice Pointers for legal counsel. subscribers can access the complete commentary, Marten Law: Senate Climate Bill Introduced Amid Considerable Fanfare, and an Uncertain Future. Additional fees may be incurred. (approx. 14 pages)

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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.