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Is Your Organization Positioned to Meet the Challenge of Climate Change?
by Daniel M. Kreeger (10/26/2009; 7 pages)
Given the far-reaching implications of climate change for industry and government, it is critical for organizations to have strong executive-level leadership that is empowered to leverage resources and personnel throughout the organization. This article examines the risks and opportunities related to climate change for businesses, nonprofit institutions, and governmental organizations and explores the emerging role of the climate change officer. The author sees a need to examine organizational structures and culture to establish an empowered climate change leadership function that is able to engage all organizational components, and to incorporate climate change response into job descriptions and expectations.
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Incorporating Energy Performance, Sustainability of Buildings into Environmental Due Diligence
by Mark J. Bennett and Douglas J. Feichtner (10/06/2009; 7 pages)
This article examines recent trends related to climate change and sustainability and their impacts on environmental due diligence. The authors say quantifying a building's energy and sustainability condition, performance, and potential will become commonplace and now is being incorporated into routine commercial real estate transactions. They believe commercial property sellers should consider expanding the scope of what they might traditionally consider “material” to the condition of the property to include energy consumption and cost data as well as sustainability characteristics that could affect such consumption and costs.
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House Global Climate Bill Mandates Many EPA Rulemakings With Tight Deadlines
by Richard G. Stoll (07/09/2009; 11 pages)
On June 26, 2009, the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009 (H.R. 2454) by a vote of 219-212. Although its primary focus is the control of greenhouse gas emissions, it does much more. The author of this article identifies 31 new regulations the bill would mandate the Environmental Protection Agency issue and discusses the many regulatory obligations imposed on EPA by the bill.
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Cap-and-Trade and Carbon Tax: Time for Another Look at the Relative Costs
by Richard B. Herzog (06/23/2009; 9 pages)
The author of this article describes findings by the Congressional Budget Office and others that a carbon tax would be less costly than cap-and-trade in achieving any given level of greenhouse gas reductions. Noting there now may be political space to address cost differences between the version of cap-and-trade in the Waxman-Markey Bill (H.R. 2454) and a tax, the author says that a widened debate could lead to the incorporation of additional cost-reducing features into cap-and-trade legislation.
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The Trouble With Angels: Carbon Capture and Storage Hurdles and Solutions
by Charles H. Haake and Karyn B. Marsh (05/08/2009; 7 pages)
This article examines the challenges to commercial deployment of carbon capture and storage using geologic sequestration. The authors argue that CCS will never become a reality without early federal investment in research and development, a uniform federal regulatory framework, and a framework to address the currently unknown and unquantifiable liabilities. They suggest a model similar to the liability cap established for the nuclear power industry under the Atomic Energy Damage Act could address some of the questions concerning the long-term liabilities.
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Legal Perspectives on Recent California Climate Change Legislation
by Chelsea Holloway (05/04/2009; 13 pages)
Because California is regarded as a bellwether state for environmental regulations, its efforts to combat or adapt to climate change will be watched closely and potentially replicated as other states and the federal government address the issue. In this article, the author looks at recent climate change legislative initiatives and litigation in California that are affecting the way it is viewing environmental regulation as well as land use and speculates about further legal challenges and additional regulations and guidelines that may be established.
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A Lawyer's Look at the Science of Global Climate Change
by Richard O. Faulk and John S. Gray (03/10/2009; 17 pages)
Whether one believes, as a matter of science, the problem of climate change is real or imagined, exaggerated or understated, the authors say the legal storm has already broken. They say this article is written to assist the lawyers who must deal with the “nuts and bolts” of advising and representing clients, and who must make recommendations and decisions affecting a client's economic circumstances, not the “global economy.”
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Regulation of Greenhouse Gases Under Section 115 of The Clean Air Act
by Roger Martella and Matthew Paulson (03/10/2009; 11 pages)
Section 115 of the Clean Air Act, among the various options under the current act, may offer EPA the most effective, flexible, economically reasonable, and legally supportable means by which to regulate greenhouse gas emissions. The authors argue that Section 115, the section explicitly crafted to address international air pollution, has the potential to provide an appropriately flexible path forward for EPA and states to take action on climate change in a cooperative way while cognizant of an international framework. They also say Section 115 presents the possibility of avoiding the unintended regulatory consequences—such as New Source Review and Title V permitting requirements—associated with greenhouse gas regulation under other provisions of the Clean Air Act.
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Accounting for Climate Impacts Under the California Environmental Quality Act
by Jeffrey D. Dintzer and Margaret A. Farrand (12/31/2008; 11 pages)
In 2007, the California Legislature passed S.B. 97, requiring the Office of Planning and Research to promulgate guidelines under the California Environmental Quality Act by July 2009 for the mitigation of greenhouse gas emissions and their effects. Until the new guidelines are released, however, developers and agencies must determine how to measure whether a project's impact on climate change is “significant,” thus triggering the requirement for an Environmental Impact Report under CEQA. The authors discuss the merits of three different approaches to determine climate change significance under CEQA and conclude that the best method to determine significance is to adopt a threshold established by reference to the state's emission-reduction goals.
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Building Owners Need to Be Concerned About Carbon Dioxide Regulations
by Lawrence Schnapf (12/23/2008; 8 pages)
This article examines EPA's Advance Notice of Proposed Rulemaking for regulating carbon dioxide and the potential impact it may have on commercial property owners. The author suggests the time is ripe for property owners to evaluate the operations of their buildings to identify steps they might take to minimize the effect of any such regulation. In the near future, the author says, it may not be uncommon to see lenders and building owners performing climate impact assessments or including greenhouse gas issues in an environmental site assessment.
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EPA's Greenhouse Gas Proposal: A Blueprint for Federal Regulation
by Roger Martella, James Cahan, and Chris Bell (10/24/2008; 9 pages)
On the whole, EPA's Advance Notice of Proposed Rulemaking on regulating greenhouse gas emissions under the Clean Air Act is providing an opportunity to see the future of an upcoming era of climate change concerns mandating the regulation of energy efficiency. It also, the authors predict, will play a key role in the formulation of an era that likely will last for decades to come. While some have dismissed the significance of the document, the authors say the ANPR is the most significant climate change development since the U.S. Supreme Court's decision in Massachusetts v. EPA.
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Storing Carbon: Options for Liability Risk Management, Financial Responsibility
by Chiara Trabucchi and Lindene Patton (09/03/2008; 22 pages)
The authors of this article say the technical complexity, economic impacts, social demand, and political challenges underpinning the deployment of carbon capture and storage technology to reduce greenhouse gas emissions from coal-fired electric power generation are daunting, but not unprecedented. In response to these challenges, the authors recommend the creation of a new “federal government corporation” in combination with a suite of financial risk management mechanisms to ensure the deployment of carbon capture and storage technology in an efficient, safe, and environmentally balanced manner.
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Sustainability Due Diligence: LEED® as the Evolving National Standard
by Mark J. Bennett, Harriet L. Greenwood, and Brian J. McCarter (08/28/2008; 7 pages)
This article examines current trends in the finance and real estate industries related to due diligence and sustainability. According to the authors of the article, the emergence of the U.S. Green Building Council's Leadership in Energy and Environmental Design rating system, together with the establishment and backing of the Carbon Principles by some of the world's leading financial institutions, provide the emerging sustainability due diligence industry with a well-grounded starting point to begin addressing the demands and embracing the opportunities presented by the sustainable real estate revolution.
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Legal Developments Related to Greenhouse Gas Emissions
by Alec C. Zacaroli and Peter C. Condron (06/27/2008; 13 pages)
The prospects for new regulations on greenhouse gas emissions have evolved from a possibility to an inevitability, according to the authors of this article. They say the greatest potential for new regulations on greenhouse gas emissions is emerging from existing laws--most particularly, the Clean Air Act. The authors, noting that state regulatory efforts and successes in the courts have set the stage for more comprehensive regulation at all levels, recommend companies position themselves to address GHG emissions by developing comprehensive climate change strategies.
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Applying the Endangered Species Act to Global Climate Change
by Richard O. Faulk and John S. Gray (05/19/2008; 5 pages)
While it may have been inevitable that the Endangered Species Act would be invoked to redress species threatened by global warming, the authors of this article say there may be no practical way to administer the law to address the vast international habitats and foreign relations problems raised by global climate change. The authors argue that now that the polar bear has been listed, its survival has the potential to entangle the federal government in a massive administrative coordination unparalleled in the nation's environmental history.
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Disclosing Effects of Climate Change in Energy, Financial Companies' 10-K's
by Tom Mounteer, Kevin Welsh, Michael Lukens, and Jeff Allmon (03/08/2008; 25 pages)
The authors review scientific and legal developments related to climate change in 2007 that those preparing disclosure forms for the Securities and Exchange Commission will want to consider. They say that not since companies first struggled with disclosure of their superfund contingent remedial liabilities has there has been so much focus on securities disclosure of environmental issues. Their report provides a foundation upon which to make the judgments that go into these disclosures.
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Cap and Trade: Early Action 'Bonuses' Under the Lieberman-Warner Bill
by Robert L. Graham, Edward F. Malone, and Michael Strong (02/07/2008; 5 pages)
Although it is likely to be several years before a national cap-and-trade program is up and running, there are good reasons for companies that would be subject to greenhouse gas emission caps to start taking inventory of their emissions. The authors note that under legislation pending in Congressespecially the Lieberman-Warner bill in the Senatesignificant opportunities exist for companies to monetize early greenhouse gas reductions or innovation.
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Should Sustainability Be the Goal Rather Than Environmental Protection?
by Paul Connor (12/31/2007; 4 pages)
This article looks at the attention sustainability and related concepts are receiving at all levels of government in the United States and asks whether sustainability should replace the current goals of environmental programs to protect human health and the environment. While the author says he does not believe such goals should be supplanted by sustainability goals, he says such initiatives can and should supplement environmental program goals and policies.
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Energy, Climate Change, and Sustainable Water Management
by G. Tracy Mehan III (12/04/2007; 7 pages)
The prevailing analysis of a truly sustainable water system or utility has both expanded and deepened within the industry and at the Environmental Protection Agency. The author cites water resources as one of many areas that already manifest profound effects from climate change and says it is time to start planning and building for a very different future if we are to avoid disruptions to our economy and society.
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Climate Change Law and Litigation in the Aftermath of Massachusetts v. EPA
by Jonathan S. Martel (11/06/2007; 11 pages)
The case of Massachusetts v. EPA, decided in April 2007 by the U.S. Supreme Court, may be the most important case in the history of environmental law. The author says the Environmental Protection Agency's air program personnel are now straining to grapple with new, enormously consequential legal and policy questions in the aftermath of this case.
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Climate Change Expected to Have Increasing Impact on Real Estate Market
by Randall Bell (10/12/2007; 6 pages)
When climate change impacts the Earth on a macro level, individual properties are being impacted on a micro level. The author says global warming has becomes less of a theoretical debate and more of a reality in the minds of most Americans, noting this already has resulted in significant real estate economic issues.
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The Commercial Deployment of Carbon Capture and Storage Technology
by Kipp A. Coddington, David M. Meezan, and Kristin Holloway Jones (09/19/2007; 4 pages)
One of the most significant impediments to a carbon dioxide capture and storage industry is not technical but legal-managing liabilities associated with the long-term geologic storage of carbon dioxide in reservoirs, particularly deep saline. There is no dedicated regulatory regime in place at either the federal or state level for capture and storage.
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Filling the Vacuum: State and Regional Climate Change Initiatives
by Stephen C. Jones and Paul R. McIntyre (07/27/2007; 9 pages)
Public and political discourse on global warming has shifted rapidly from whether human activity is causing global warming to the question of how best to address it. The authors find the lack of action by the federal government has created a vacuum into which regional, state, and local governments have rushed with a variety of regulatory schemes.
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Climate Change Litigation: Trends and Developments
by Todd O. Maiden and Eric M. McLaughlin (04/03/2007; 11 pages)
This article, written before the decision of the U.S. Supreme Court in Massachusetts v. EPA, looks at climate change cases filed in U.S. courts, summarizes common legal challenges faced by the litigants involved, and recognizes particular trends that have developed in the short time within which such litigation has arisen.
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