As the world continues to grapple with the transition to a low carbon economy, there are seemingly weekly events that have significant policy and legal developments both advancing the low carbon future and challenging that advancement. Here are last week’s highlights. CEQ issued new, non-binding guidance to federal agencies on how climate change impacts should be considered for projects subject to NEPA review. The guidance instructs agencies to consider the direct and indirect greenhouse gas emissions from such projects. It was not long ago when the argument was “whether” to consider GHG emissions at all. This guidance may not be legally binding, but with a supportive Administration, and depending on the November elections, it will be potent ammunition for environmental NGOs seeking to delay and/or ultimately prevent not only any new major energy or infrastructure projects that will lead to increased use of fossil fuels in the U.S., but also any projects that would provide increased access to global markets for fossil fuels extracted in the U.S. and planned to be transported overseas or across borders. This guidance and its use by a sympathetic Administration under the watchful eyes of NGOs, will likely be before the courts in due time.
Last week also saw California publicly presenting its draft blueprint for the State’s compliance under EPA’s Clean Power Plan. The CPP is currently stayed, pending en banc oral arguments before the D.C. Circuit in September, and no matter the result, Supreme Court review will likely be sought. Depending on one’s perspective, California’s move is another example of its leadership in the fight against climate change or another provocative measure that pushes legal boundaries. California is not new to legal challenges to the implementation of its climate programs under AB32. Having survived a number of challenges to date, it remains to be seen whether California will continue to successfully push its agenda to transition to a low carbon economy.
The list of challengers to EPA’s methane rules grew last week, with 21 industry trade groups and a coalition of 14 states and state agencies filing suit in the D.C. Circuit Court. The usual NGO supporters are expected to join in on the fun to defend EPA’s rules. EPA’s methane rules are a key part of President Obama’s climate change action plan and compliment the Clean Power Plan as part of Executive Branch measures to reduce greenhouse gases in the absence of Congressional support.
Last, the new head of the UNFCCC, Minister Patricia Espinosa of Mexico, was officially sworn in last week. Minister Espinosa has garnered strong praise for her leadership during the Cancun COP, which followed the year after the Copenhagen COP. Cancun is regarded as putting the process back on track after it almost derailed in Copenhagen. That, of course, has lead to focused and committed engagement by the international community in years leading up to the Paris COP, where the international community reached the historic Paris Agreement. While the Kyoto Protocol took eight years to enter into force as international law, the current signs suggest that enough Parties to the Paris Agreement may submit their respective instruments for ratification to the UN before the end of this year. That is a truly remarkable sea change. The opponents of change are trying to undermine the gravity of this historic achievement, and the continued momentum from Paris, but the signal is clear. Now the hard work of implementing the commitments made by 195 countries, each nationally determined, begins.
