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GHG LITIGATION

GHG LITIGATION. Peter Glaser Climate Challenges in the Sunshine State Orlando, FL February 13, 2008 . Litigation Issues. EPA/CAA – “Endangerment” and CAA Regulation? PSD Morass Tort Lawsuits Will Anyone Challenge State GHG Regulatory Efforts? Financial Disclosure Issues Other Issues.

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GHG LITIGATION

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  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@troutmansanders.com

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