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Climate Change Corner: National Climate Change Legislation Struggling & BAAQMD Update on CEQA Thresholds

By Bruce S. Flushman and Jonathan W. Redding

[Originally published as a Wendel Rosen Client Update, January 8, 2010.]

National Climate Change Legislation (With Cap & Trade) On Life Support

The United States “pledged” at Copenhagen that by 2020 it would reduce its Greenhouse Gas (GHG) emissions by 17% from 2005 levels.  And in the recent State of the Union, President Obama emphasized the need for national climate change legislation.  Despite such prodding, it is most unlikely that Congress will pass such legislation, including a cap and trade system in 2010.  Given this economy and current politics, garnering 60 votes in the Senate for a bill that will effectively tax energy consumption does not seem possible — no matter how persuasive the arguments are for the need to deal with global warming.  Six months ago, less than a majority of Senators were apt to support a cap and trade system in the United States.  Since then support has dropped further and, with the election of Senator Brown from Massachusetts, likely will continue to drop.  For more details of why the cap and trade legislation of the Kerry-Boxer bill are unlikely to garner 60 votes, please see “
Climate Change Corner: Legislative and Regulatory Updates, Analysis and Comment” and the presentation “Prospects for National Climate Change Legislation & Copenhagen Treaty.” 

A bipartisan consensus appears to be emerging in the Senate around more straightforward energy legislation: either the Bingaman bill (S.B. 1462) or a compromise bill from Senators Kerry, Graham and Lieberman.  Both proposals relate mainly to energy independence and reducing dependence on foreign oil rather than directly to GHG reduction.  The proposals promote energy jobs in the U.S., investment in off shore oil production, nuclear energy, clean coal technologies and renewable energy from geothermal, wind and solar sources (as well as biomass, tidal, landfill, coal methane, etc).  For example, S.B 1462 would establish a nationwide renewable electricity standard (RES) requiring 12% of all U.S. electricity to come from renewable energy sources by 2019-2020; the RES standard would be increased by essentially one percent per year through 2039.  Energy conservation, energy efficiency and smart grid would all be a part of the program.

Bay Area Air Quality Management District (BAAQMD) Update on CEQA Thresholds of Significance

On January 6, 2010, by a vote of 21-1, the Board of Directors of BAAQMD again postponed adoption of staff proposals for the strictest standard in the state for review and evaluation of GHG emissions associated with new land use developments.  The Board directed staff to gather additional information, conduct workshops and explain the proposed rules to members of the public and other city agencies before bringing the proposal back to BAAQMD on April 7, 2010 for further consideration.  A number of opponents, including several cities and a group of homebuilders and their consultants, complained the rules were too strict, would be too expensive to implement, and would be a disincentive to state of the art, mixed use development projects promoted by both A.B. 32 and S.B. 375.  Informed sources say the complexity of the proposal and the controversies and difficulty of understanding the impact of its adoption were factors in the Board’s decision.  Some suggested that had a straight up and down vote been taken on the proposal as drafted it may have resulted in a lopsided defeat of the proposal.  As the Board provided only limited direction to staff, one may question what will result from staff’s efforts to better explain rules that many of BAAQMD’s constituents found objectionable.  For more details on the impact of the proposal see the article entitled “
BAAQMD District GHG Thresholds of Significance Will Have Wide Impact” and the presentation “Climate Change: Agencies Give Guidance.”