GHG LITIGATION

1
GHG LITIGATION

• Peter Glaser
• Climate Challenges in the Sunshine State
• Orlando, FL
• February 13, 2008

2
Litigation Issues

• EPA/CAA Endangerment and CAA Regulation?
• PSD Morass
• Tort Lawsuits
• Will Anyone Challenge State GHG Regulatory
  Efforts?
• Financial Disclosure Issues
• Other Issues

3
Are GHGs a CAA Pollutant?

• Supreme Court 5-4 Yes
• Statute broad definition of air pollutant and
  air pollution
• Ruling does not mandate regulation
• Remand Endangerment
• Discretion
• - May EPA consider factors other than science?
• - Scrutiny on scientific findings

4
Context Not Just About Autos

• NSPS New York v. EPA Remand
• Other Petitions/NSPS
• NAAQS?
• PSD Context Motor Vehicle CO2 Regulation Will
  Make CO2 a Regulated NSR Pollutant
• - Any new source emitting more than 100/250 tpy
  CO2 must obtain a PSD permit
• - Any existing source emitting more than 100/250
  tpy CO2 making a modification increasing CO2
  emissions by ANY amount must obtain a PSD permit

5
Where Things Stand

• Enactment of Energy Bill
• Denial of CA Waiver
• Intense Lobbying on PSD Impacts
• What Will EPA Do Next and Is There Time?

6
PSD MORASS IS CO2 ALREADY A REGULATED POLLUTANT?

• EAB Cases
• State PSD Cases
• Sunflower State law
• Settlements - Duke

7
TORT LIABILITY? NOT YET

• NY 8 States sue 5 utilities over GHG emissions
  from powerplants in 20 states seeks injunction
  - case dismissed appellate decision expected
  shortly
• MS Individual property owners sue large number
  of energy/chemical companies alleging GHGs
  exacerbated Katrina sought damages case
  dismissed 8/30/07 on appeal
• CA AG sues autos seeks damages case
  dismissed 9/17/07

8
BASIS FOR DECISION POLITICAL QUESTION

• While at times, some judges have become involved
  with the most critical issues affecting America,
  political questions are not the proper domain of
  judges.

9
WILL ANYONE CHALLENGE STATE GHG REGULATORY
EFFORTS?

• State Electricity Import Bans
• State GHG Requirements
• Interstate Compacts

10
GHG FINANCIAL DISCLOSURE

• 9/14/07 NY AG Cuomo issues subpoenas against 5
  energy companies seeking information on
  companies potential financial liabilities from
  GHG emissions and whether they have been
  adequately disclosed
• Implies failure to adequately disclose could be
  violation of NY law as misrepresentation or fraud

11
SEC PETITION

• 9/18/07 Large institutional investors, state
  AGs, 11 state pension funds, environmental groups
• Seeks Interpretive guidance clarifying
  registrants obligation under existing
  regulations to disclose material information
  concerning the effect of climate change and
  regulation of greenhouse gas emissions upon their
  financial condition and business operations.
• Also seeks immediate review of adequacy of
  climate change risk disclosures for companies
  filing 10-Ks and 10-Qs.

12
OTHER

• Extent to which global warming should be
  considered in EIS
• Rural Utilities Service
• Endangered Species
• Auto State Litigation

13

• Peter Glaser
• Troutman Sanders
• 401 9th Street, N.W., 1000
• Washington, D.C. 20004
• 202-274-2998
• peter.glaser_at_troutmansanders.com