United States: Weekly Climate Change Policy Update - December 22, 2008

Last Updated: December 29 2008

Article by Andrea Hudson Campbell, Megan Ceronsky, Kyle Danish, Shelley Fidler and Kevin Gallagher

To receive the Weekly Update via email, visit our Sign Up/Subscribe page http://www.vnf.com/news-signup.html


A common thread among President-elect Obama's recent cabinet appointments – from Labor to NOAA to the Science Advisor – is a concern for and deep expertise in climate change and clean energy . . . The outgoing EPA Administrator sent a letter to the Agency's regional offices allowing them to issue permits for coal-fired power plants without CO2 emission limits. Expect the decision to be revisited by the Obama Administration . . . The RGGI held its second allowance auction. Notably, a report issued this week concludes that the system already is "long"; emissions are below the cap.

Presidential Transition

  • Obama Nominees for Interior, Agriculture, Labor, NOAA, and Science Advisor Announced. President-elect Obama has nominated Sen. Ken Salazar (D-CO) for Secretary of the Interior, former Iowa governor Tom Vilsack for Secretary of Agriculture, Rep. Hilda Solis (D-CA) as Labor Secretary, Jane Lubchenco as head of the National Oceanic and Atmospheric Administration (NOAA), and John Holdren as Science Advisor. All four individuals have been outspoken advocates for addressing climate change.
    • Sen. Salazar worked as an environmental lawyer, directed the Colorado Department of Natural Resources, and served as attorney general in Colorado before being elected to the Senate in 2004. As a Senator, he supported carbon capture and sequestration (and coal-fired power more generally), a federal renewable portfolio standard, rewarding farmers and ranchers who employ land use techniques that store carbon dioxide, and an energy compromise this fall that would have granted offshore drilling concessions in exchange for investment in alternative fuels and energy efficiency.
    • Mr. Vilsack has long been a proponent of climate change regulation and has stressed the importance of green technological development, energy efficiency, green building, and renewable energy and fuels – especially corn-based ethanol. Although his nomination was praised by the ethanol industry, Mr. Vilsack co-chaired a task force on climate change for the Council on Foreign Relations last year that recommended phasing out domestic subsidies for mature biofuels such as corn-based ethanol and shifting towards second generation, nonfood crop biofuel technology. Mr. Vilsack also shares President-elect Obama's belief that investments in renewable energy and energy independence can create good jobs.
    • Rep. Solis has been outspoken on issues of environmental justice and toxic waste in Congress. She is also a proponent of job creation through investments in clean energy and was one of the authors of the Green Jobs Act, which authorized $125 million to train workers in jobs related to renewable energy development and energy efficiency as a part of the 2007 energy bill. With the incoming administration's focus on green job creation, the Labor Department may play a more significant role in environmental and energy policy than in the past.
    • Ms. Lubchenco, a professor of marine ecology at Oregon State University and former recipient of a MacArthur "genius" grant, has focused much of her research on climate change, ecosystems, and marine reserves. She was also a member of the group of prominent scientists who formed Climate Central, a think tank whose aim is to bring more scientific information on climate change into public debates.
    • Mr. Holdren is the Teresa and John Heinz Professor of Environmental Policy and Director of the Program on Science, Technology, and Public Policy at the Kennedy School, as well as Professor of Environmental Science and Public Policy in the Department of Earth and Planetary Sciences at Harvard University. He is also the Director of the Woods Hole Research Center and from 2005 to 2008 served as President-Elect, President, and Chair of the Board of the American Association for the Advancement of Science. His work focuses on causes and consequences of global environmental change, analysis of energy technologies and policies and a recent paper on sustainability.
President-elect Obama also formally announced that Carol Browner, former EPA administrator under President Bill Clinton, will fill the newly-created position of Assistant to the President for Energy and Climate Change and will coordinate related policies for the administration. Heather Zichal, President-elect Obama's energy and environment policy director during the campaign and a former staffer for Senator John Kerry (D-MA), will work under Ms. Browner as Deputy Assistant to the President.
  • President-elect Obama Stresses Interlinkage of Energy, Security, Economy. In formally announcing his selections for top energy and environmental positions in his administration this week, President-elect Obama continued to frame energy policy as intimately linked with national security and economic growth. Acknowledging that calls for energy independence were not new, President-elect Obama stated: "This time we cannot fail, nor be lulled into complacency simply because the price at the pump has – for now – gone down from $4 a gallon. To control our own destiny, America must develop new forms of energy and new ways of using it." When asked if he would immediately approve California's request for a Clean Air Act waiver to regulate greenhouse gas emissions from automobiles, which he has supported in the past, President-elect Obama said the matter would be reviewed by his advisors in the weeks to come. The EPA denied the waiver last year. If granted, the waiver would allow California and approximately twenty other states to require new cars and light trucks to emit 30% less CO2 than current models by 2016.
  • Action Plan May Provide Insight into Energy Secretary's Priorities. President-elect Obama's choice for Energy Secretary, Steven Chu, helped draft a "100 Day Energy Action Plan" for the new administration that was released by the Council on Competitiveness. The plan's recommendations include 1) rapid adoption of the world's leading energy efficiency standards including a labeling, measurement, and verification system; 2) leveling the playing field on subsidies for energy sources in the United States; 3) establishment of a $200 billion National Clean Energy Bank to provide long-term financing for market-deployment of breakthrough products or projects that improve energy efficiency and avoid or sequester GHG emissions; and 4) creation of a $250 million public-private partnership fund (with matching funds from state and private sector investments) to create R&D test-beds and large scale commercial pilots for clean energy technologies. The full report is available here.


  • EPA Administrator Issues Memo Responding to Board Decision on CO2 Limits in Permits. In a December 18 memo to all EPA regional administrators, EPA Administrator Stephen Johnson said that the regional offices should not require CO2 emission limits as part of Prevention of Significant Deterioration (PSD) or New Source Review (NSR) permits. The memo responds to a recent decision in which the agency's Environmental Appeals Board (EAB) held that EPA Region VIII must either conduct a best available control technology (BACT) analysis to determine the appropriate level of CO2 emission limits in a PSD permit for the Deseret Power Electric Cooperative or provide a detailed explanation of why such limits are not necessary. A factor in the EAB decision was that EPA has not adopted a formal interpretation of what constitutes a "regulated NSR pollutant." Under the Clean Air Act (CAA), PSD and NSR permits must contain emission limits for all regulated pollutants; environmental groups had argued in the case that CO2 is a "regulated pollutant" under the CAA because the Acid Rain Program requires facilities to monitor their CO2 emissions. Mr. Johnson stated in the memo to regional administrators that "EPA will interpret this definition of 'regulated NSR pollutant' to exclude pollutants for which EPA regulations only require monitoring or reporting but to include each pollutant subject to either a provision in the Clean Air Act or regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The EAB decision also recommended that EPA take national action to address whether CO2 limits must be included in PSD and NSR permits. Mr. Johnson's memo noted that the agency has issued an Advance Notice of Proposed Rulemaking (ANPR) seeking comment on possible options for regulating CO2 under the CAA, and asserted that the December 18 memo was intended to serve as the kind of national action recommended by the EAB until the agency finalizes any regulations that began with the ANPR process.

States and Cities

  • RGGI Holds Second Allowance Auction. The Regional Greenhouse Gas Initiative conducted its second auction of emission allowances. All ten RGGI member states participated in the auction, which sold off allowances equivalent to 31.5 million tons of CO2. RGGI members have committed to capping their combined emission at 188 million tons of CO2 from 2009-2014, with the emission cap reduced by 2.5 percent each of the next four years.
  • Virginia Finalizes Climate Action Plan. The Virginia Commission on Climate Change released a final climate change action plan calling for the state to reduce its GHG emissions by nearly 20 percent by 2025 (but not specifying a baseline against which to measure the 20 percent reduction). The Commission, an advisory group established by Governor Tim Kaine (D), focused on energy efficiency and conservation programs, expanded nuclear power, and increased development of renewable energy sources. The plan proposes a mandatory energy efficiency standard that would require the state to meet nearly 20 percent of its electricity needs through efficiency initiatives by 2025. The Commission avoids calling for a state-wide or regional emission trading program, but instead calls on the federal government to adopt a national cap-and-trade program.
  • New Jersey Releases Draft Climate Plan for Public Comment. The New Jersey Department of Environmental Protection (DEP) published for public review a draft climate change plan. The plan details the DEP's recommended proposals for reducing the state's GHG emissions to 1990 levels by 2020, and to 80 percent below 2006 levels by 2050. The key recommendations include a ban on new coal-fired power plants; expansion of the state rail network; initiatives to promote no- and low-emission vehicles; increased renewable energy generation; implementation of stringent energy efficient standards; and a Garden State Climate Fund to develop GHG offset projects. The state's emissions goals were signed into law by Governor Jon Corzine (D) in 2007. New Jersey is a member of the Regional Greenhouse Gas Initiative.

Studies and Reports

  • Impact of Energy Sources Ranked in Study. A study by Stanford engineering professor Mark Jacobson published this month in the Journal of Energy and Environmental Science ranks "clean" energy technologies according to their environmental impact. According to Jacobson's ratings, the best-to-worst electric power sources are: 1) wind power; 2) concentrated solar power (CSP); 3) geothermal power; 4) tidal power; 5) solar photovoltaic (PV); 6) wave power; 7) hydroelectric power; 8) a tie between nuclear power and coal with carbon capture and sequestration (CCS). The best-to-worst vehicle options are: 1) wind (wind-electric) battery electric vehicles (BEVs); 2) wind hydrogen fuel cell vehicles (HFCVs), 3) CSP-BEVs; 4) geothermal-BEVs; 5) tidal-BEVs; 6) solar PV-BEVs; 7) wave-BEVs; 8) hydroelectric-BEVs; 9) a tie between nuclear-BEVs and coal-CCS-BEVs; 11) corn-E85; 12) cellulosic-E85.
  • Cutting Smog and Soot a Shortcut to Mitigating Climate Change. A new study released by researchers from NASA's Goddard Institute for Space Studies found that reducing smog and soot both improves local air quality and provides significant and rapid short-term climate change mitigation. The pollutants that cause smog and soot are very short-lived in the atmosphere relative to carbon dioxide, which has an atmospheric lifetime of centuries. Although CO2 emissions must be addressed to mitigate climate change in the long term, reducing smog and soot in the short term (primarily through reducing domestic fuel burning) can generate a much quicker cooling effect, buying time for other mitigation strategies. Lead author Drew Shindell suggested that the beneficial local health effects of reducing smog and soot help make efforts to reduce them attractive, even for developing countries that have resisted committing to GHG emission controls. The study is available in the journal Atmospheric Chemistry and Physics here.
  • RGGI Below Cap. According to a report by Environment Northeast, recent data indicates that 2008 greenhouse gas emissions in the states participating in the Regional Greenhouse Gas Initiative have been on average 16% below the cap, due to declining electricity use, increasing fuel price diversity, the economic downturn, and increases in non-greenhouse gas emitting generation. The report also predicts that emissions are unlikely to remain as low in 2009, due in part to the drop in oil and coal prices.


  • UN Climate Chief Supports Additional High-Level Meeting in 2009. Yvo De Boer, Executive Secretary of the United Nations Framework Convention on Climate Change, said that an additional ministerial-level meeting of climate change negotiators next year could be beneficial for achieving progress on a successor treaty to the Kyoto Protocol. There is only one ministerial-level Conference of the Parties – which was held in Poznan, Poland, earlier this month – before the ministers are expected to reach final agreement on a successor treaty in Copenhagen, Denmark in December 2009. Mr. De Boer said that an additional Conference of the Parties could allow the Administration of U.S. President-Elect Barack Obama to become more fully involved in the negotiations. Reengagement of the U.S. in the international climate negotiations is seen as a key to the development of an effective international climate treaty. Officials from the European Union have expressed support for the addition another high-level meeting to the climate negotiation schedule.
  • EU Parliament Approves Extensive Climate Package. The European Union passed a six-part climate package that will guide the bloc's response to climate change. The extensive package includes binding targets for renewable energy generation; revisions to the EU Emission Trading Scheme (ETS); mandatory emission reduction goals for economic sectors not covered by the ETS; new vehicle CO2 emission standards; geologic carbon capture and sequestration provisions; and transportation fuel quality standards. The climate package was approved last week by the 27 EU heads of state but could not become law until passed by both the EU Parliament and the EU Council. The climate package will now be sent back to the EU Council for formal adoption by the member states.
  • U.S., Germany Announce Climate Partnership. The United States and Germany announced a climate partnership under which the two nations will cooperate in their response to climate change. The partnership, called the Transatlantic Climate Bridge, will involve cooperation between federal and state officials, business leaders, and academics on issues related to energy efficient buildings and transportation, carbon capture and storage, and emissions trading.
  • Australia Establishes Mid-Term Emissions Target. Prime Minister Kevin Rudd announced that Australia has adopted a mandatory mid-term GHG reduction target. Under the target, Australia would reduce its emission to 5 percent below 2000 levels by 2020. A more stringent target of 15 percent below 2000 levels would go into effect if an international climate change agreement is reached that would require all major economies to substantially reduce their GHG emissions and advanced economies to make reductions comparable to Australia's. Australia proposes to achieve the emission reductions through a carbon pollution reduction scheme (CPRS) beginning July 1, 2010. The CPRS would be a cap-and-trade program applicable to 1,000 major emitting facilities that would incorporate allowance banking and borrowing, unlimited use of credits created under the Kyoto Protocol's Joint Implementation and Clean Development Mechanism, and a price cap set at A$40 (US$26.6) in 2010 that will be phased out completely within five years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions