The year 2007 was a pivotal one for climate change, as this issue became the focus of political, economic, and social discourse. In this informative Emerging Issues Commentary, Gabrielle Sigel (a partner) and Oscar Marrero (an associate) at Jenner & Block's Chicago office review the key climate change developments and initiatives that took place over the year. As they note, while 2007 "began with corporate America calling for action by federal and international governments to address greenhouse gas (GHG) emissions and climate change strategies generally, in early spring . , sparked by the U.S. Supreme Court decision in Massachusetts v. EPA, the climate change agenda changed dramatically -- shifting from general calls for action to a year-long focus on state and local regulatory actions, Congressional cap-and-trade legislation, and vehicle GHG emission limitations." Among the many topics discussed by Ms. Sigel and Mr. Marrero are:
· GHG motor vehicle emission reduction regulation and litigation;
· Senate and House climate change bills, including the Lieberman-Warner Warner cap-and-trade bill; and
· State and regional climate change initiatives and programs across the country, with California leading the state efforts.
The article concludes with the authors' thoughts on what to expect in 2008 from the federal government, states, and businesses (particularly the auto industry) in responding to climate change issues. For example, they note that states are likely to continue introducing new regulatory actions on climate change throughout 2008, and advise companies to monitor such state regulation and additionally begin analyzing how each company will meet likely inventory and reporting requirements for its GHG emissions.
The authors write: “After the Supreme Court's decision in Massachusetts v. Environmental Protection Agency, EPA reviewed California's petition for a waiver to regulate GHG emissions from automobiles. In May 2007, EPA held public hearings on California's petition for a waiver of federal preemption law. The public hearing period remained open through mid-June. When EPA still had not ruled on the waiver request, on November 8, 2007, California filed suit in the United States District Court for the District of Columbia, seeking to force EPA to make a decision on the waiver request. On December 19, 2007, EPA denied the waiver, marking the first time EPA had ever denied a requested waiver from California. EPA stated that California did not need its GHG regulation to meet compelling and extraordinary circumstances. EPA justified the denial by noting that the President had recently signed the Energy Independence and Security Act of 2007 (EISA), which raises the corporate average fuel economy (CAFE) standard for cars and light trucks and increases renewable fuel use. According to EPA, the EISA will be more effective in reducing GHG emissions than the individual state standards that would come into effect if EPA had granted the waiver.
“On January 2, 2008, California appealed EPA's decision to the United States Court of Appeals for the Ninth Circuit. Several states and environmental groups have joined California's appeal. As a result, litigation with respect to California's waiver request will continue in 2008.
“In the wake of the Supreme Court decision, the automobile industry embraced the idea of reducing GHG emissions, while it resisted attempts to do so through California's emissions reduction approach. For example, even before the Supreme Court's decision, on February 1, 2007, EPA and the automobile industry announced that they had developed new technology that will reduce GHG emissions from automobile air conditioners. The refrigerants used in automobile air conditioners, hydrofluorocarbons (HFCs), are significant GHGs. After the Supreme Court's decision, on March 22, 2007, General Motors (GM) announced plans to cut its CO2 emissions by 40 percent below 2000 levels at its domestic manufacturing plants by 2010. GM stated that it will achieve the reductions by improving energy efficiency, reducing waste, and increasing the use of renewable resources. While not directly addressing emissions from vehicles, GM's announcement indicated that the industry was committed to working to reduce GHG emissions as part of a broader effort.” [footnotes omitted]
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