US Supreme Court considers EPA greenhouse gas emissions regulations

Tuesday, February 25, 2014

May the U.S. Environmental Protection Agency regulate greenhouse gas emissions from power plants and industry under the Clean Air Act?

The Supreme Court of the United States heard oral argument on this issue yesterday, in the case Utility Air Regulatory Group v. Environmental Protection Agency, Docket No. 12-1146.  How the court rules on the case will shape federal regulation of carbon dioxide and other greenhouse gas emissions in the nation.

The case arises from EPA's decision in 2010 to regulate greenhouse gas emissions from power plants and industrial facilities.  That decision stemmed from a 2007 Supreme Court ruling, Massachusetts v. EPA, requiring EPA to regulate greenhouse gas emissions from motor vehicles under Title II of the Clean Air Act.  Since 1980, EPA has held that once it regulates one type of air pollution (e.g. greenhouse gases from motor vehicles), it may (or must) broaden its regulations to cover all such emissions (e.g. greenhouse gases from all sources).  Applying this precedent in 2010, EPA found that regulating motor vehicle greenhouse gas emission standards under Title II of the Clean Air Act also compelled EPA to regulate greenhouse gas emissions under the Clean Air Act's Title I "prevention of significant deterioration" or PSD program, as well as under its Title V stationary-source permitting program.

Building on its Title II regulation of greenhouse gas emissions from cars and trucks, EPA then promulgated its Title I and Title V regulatory programs for stationary sources.  These rules regulated stationary sources emitting 75,000 tons of carbon dioxide or more per year, but triggered challenges from several states, over 70 non-governmental advocacy groups, and business interests.  While challengers raised a host of objections, one of the key substantive issues raised was whether EPA may truly regulate carbon dioxide as a "pollutant."  Challengers also mounted attacks rooted in law, questioning whether EPA's 2010 decision to regulate motor vehicle greenhouse gas emissions could legally trigger permitting requirements for stationary sources.

After the U.S. Court of Appeals for the D.C. Circuit upheld EPA's rules, challengers appealed that decision to the Supreme Court.  While the Court declined to address most of the issues challengers raised, it decided to entertain argument on one point: "Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases."

The Court's official docket for Utility Air Regulatory Group v. Environmental Protection Agency can be found here, and unofficial copies of many of the pleadings can be found on SCOTUSBlog.  While the Court has not indicated when it will rule on the case, energy and other industries are watching closely for the ultimate outcome.

Wave energy project in Australia advances

Tuesday, February 11, 2014

What may become the world's largest electricity generation project to rely on the power of ocean waves is moving forward in Australia, as Lockheed Martin has announced that it has signed a contract with Victorian Wave Partners Ltd. to develop a 62.5-megawatt project off the coast of Victoria, Australia.

Waves off the coast of Maine.

The world's oceans contain significant amounts of energy, embodied in waves, tides, and currents.  Winds blowing over the seas also contain substantial energy.  Given the immense size of these marine renewable energy resources, extracting useful power from the oceans offers significant potential to serve society's needs without relying on fossil fuels.  Early projects, like the 2008 Agu├žadoura Wave Farm off Portugal, sought to demonstrate the feasibility of wave energy conversion, but the rigors of the marine environment, need for advanced technologies, and costs of developing a wave energy project have limited development of wave and other hydrokinetic energy resources.

Today's announcement by Lockheed Martin of a project development agreement with Victorian Wave Partners Ltd. envisions a much larger project than has previously been developed anywhere in the world.  Victorian Wave Partners is an Australian special purpose company owned by Ocean Power Technologies Australasia Pty Ltd., an affiliate of U.S. company Ocean Power Technologies or OPT.   OPT's PowerBuoy wave generation technology uses a buoy that moves up and down in ocean waves to capture mechanical energy.  This mechanical energy is used to power an electrical generator, whose electricity is transmitted to shore via an underwater cable.  OPT has proposed projects relying on its PowerBuoy technology off the coast of Oregon in the U.S., and has tested its technology off Hawaii, New Jersey, and Scotland.

The Victoria project is scheduled to be developed in three stages.  The first stage is expected to produce approximately 2.5 megawatts of peak power by 2014 or 2015, with subsequent stages designed to build up to 60 additional megawatts of peak capacity by 2018 or 2019.  The project relies in part on funding from the Australian Renewable Energy Agency or ARENA.  Australia has established a goal of relying on renewable energy for 20 percent of its needs by 2020.  ARENA offers funding to qualified renewable energy projects capable of helping the island nation meet this goal.

While the Victoria project may become the world's largest wave energy project to date, other projects in Australia, Scotland, and the United States are moving forward.  Will waves soon contribute meaningfully to the world's portfolio of energy resources?