Green Chemistry

There are two mammoth environmental programs wending their way through the rule-making process in California now, CARB's proposed cap-and-trade regulations and DTSC's green chemistry initiative. The latter promises to have a far larger effect on products sold in California even than Proposition 65, which has generated its own litigation specialty. DTSC's acting director has reportedly said that DTSC will release a new draft of its green chemistry regulations within the next few days with very short 15-day public comment period.

-Morgan

Declaratory Relief in CERCLA Actions

The Ninth Circuit today held that a CERCLA plaintiff that fails to prove liability for recoverable response costs may not obtain declaratory relief for future response costs that it may incur. In City of Colton v. American Promotional Events, Inc., the Ninth Circuit first affirmed summary judgment for defendants on plaintiff's claims for responses costs because plaintiff had admittedly not complied with the National Contingency Plan. The court then held, in a case of first impression in the Ninth Circuit, that plaintiff was not entitled to declaratory relief for future costs.

-Morgan

Ninth Circuit Decides CERCLA Current Owner Issue

In State of California Department of Toxic Substances Control v. Hearthside Residential Corp., the Ninth Circuit answers one of the unanswered questions of CERCLA liability -- is the "current owner" of a CERCLA facility, one of the four categories of responsible parties, the owner at the time a lawsuit is filed, or at some other time? The Ninth Circuit holds that the "current owner" is the owner at the time that response costs are incurred. The decision also provides a very handy statement of the various purposes of CERCLA, and will probably be cited far more for those purposes than for its holding. The decision makes sense, because costs are usually incurred from the time of discovery of a release, and any other rule would create a game of hot potato in which parties have an incentive to transfer the property after discovery of contamination but before a lawsuit is filed. One interesting ramification is that because costs may be incurred over a long period of time, there may be more than one "current owner," and perhaps many.

-Morgan

2008 National US Greenhouse Gas Inventory

The U.S. Environmental Protection Agency (EPA) has released the15th annual U.S. greenhouse gas inventory report, which shows a drop in overall emissions of 2.9 percent from 2007 to 2008. The downward trend is attributed to a decrease in carbon dioxide emissions associated with fuel and electricity consumption. Total emissions of the six main greenhouse gases in 2008 were equivalent to 6,957 million metric tons of carbon dioxide. The gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. Though overall emissions dropped in 2008, emissions are still 13.5 percent higher than they were in 1990. http://www.epa.gov/climatechange/emissions/usinventoryreport.html

Draft Cap-and-Trade Regulations

CARB's new very preliminary draft cap-and-trade regulations are now available on CARB's website. The draft regulations have placeholders for many of the most important provisions, such as how allowances will be distributed, how many will be auctioned and how many will be freely distributed. And CARB has not yet made a decision whether to include industrial emitters of less than 25,000 MTCO2e in the initial cap-and-trade phase from 2012 to 2015. CARB's overview summary provides a schedule for the promulgation of the regulations, which are scheduled to go into effect January 1, 2012.

-Morgan

Final GHG Reporting Regulations Published

On October 30, 2009, EPA published its final greenhouse gas reporting regulations in the Federal Register. The regulations are described below in my September 28 post.

-Morgan

District Court Allows Katrina Victims to Pursue Climate Change Lawsuit

In Comer v. Murphy Oil USA, residents along the Gulf Coast filed suit against numerous energy companies claiming defendants' business activities contributed to global warming that contributed to the destruction of their properties during Hurricane Katrina. J. Dennis rules that plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims presents nonjusticiable political questions. But plaintiffs' unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons.

-Morgan Gilhuly and Chris Jensen