Green laws are germinating

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A couple of environmental lawyers have read the tea leaves and say that laws designed to promote conservation and curb climate change will be in place soon.

For starters, states are taking action. Two states considered leaders are California and Washington, says Arthur J. Harrington, a partner with the Milwaukee headquarters of Godfrey & Kahn S.C., chair of its Environmental and Energy Law Practice Group. Wisconsin is taking steps as well — although the state’s dependence upon coal will be a significant hurdle, in his opinion.

Two years ago, Governor Jim Doyle announced a goal of “25 by 25”— getting 25 percent of the state’s electricity and 25 percent of its transportation fuels from renewable sources by 2025 in Wisconsin’s “Declaration of Energy Independence.”

Environmental Offices

In April 2007, Doyle additionally signed executive orders creating a new Office of Energy Independence, and another creating a Task Force on Global Warming, bringing together a prominent and diverse group of key Wisconsin business, industry, government, energy and environment leaders to examine the effects of, and solutions to, global warming in Wisconsin. The task force will create a state plan of action to deliver to the governor.

In February, the group issued an interim report, calling for the investigation and adoption of utility ratemaking polices that promote energy conservation, and the creation of new energy efficiency standards for residential and commercial buildings. It also recommended legislation requiring rental properties to install energy efficient lighting in common areas and wall-mounted fixtures, and the creation of the Wisconsin Greenhouse Gas Reduction Initiative, a voluntary program to motivate and enable individuals, communities, farms and other businesses to re-duce their greenhouse gas emissions.

A final report is anticipated in May. Looking at Doyle’s record for successfully initiating legislation based upon recommendations that he’s received via task forces and the like, the chances are good that some will become law, predicts David A. Crass, an environmental lawyer and the managing partner of the Madison office of Michael Best & Friedrich LLP. It’s anyone’s guess, however, whether they will take the form of a sweeping omnibus bill, or possibly be adopted piecemeal, perhaps starting slowly with the University of Wisconsin system or other arms of state government.

In addition, last November, 10 Midwestern leaders, including Doyle, signed the Midwestern Regional Greenhouse Gas Reduction Accord in Milwaukee. The accord will develop a market-based and multi-sector “cap-and-trade” mechanism to help achieve those greenhouse gas reduction targets, and will establish a system to enable tracking, management, and crediting for entities that reduce greenhouse gas emissions.

Cap-and-trade programs, Harrington explains, rely upon the marketplace to reduce emissions. They create a financial incentive for emission reductions by assigning a cost to polluting. An environmental regulator sets a “cap” that limits emissions from a specified group of polluters, such as power plants, to a level lower than their current emissions.

Because the emissions cap restricts the amount of pollution allowed, permits that give a company the right to pollute take on financial value. Companies are free to buy and sell permits in order to continue operating in the most profitable manner available to them.
For his part, Crass says that state regulation is certainly a step in the right direction. But it’s probably not the best approach overall — “because it’s an issue that doesn’t respect state boundaries.

“Relying entirely on a state-by-state basis would be inefficient and would result in disproportionate impacts. I think a better policy would be to talk about greenhouse emission reductions and cap and trade policies on at least a national, if not an international level.”

Eyes on Legislation

At the federal level, both Crass and Harrington are watching “Lieberman-Warner,” the short form of a bill entitled “America’s Climate Security Act,” which the Sens. Joseph Lieberman (I-CT) and John Warner (R-VA) formally introduced last October. It’s one of many bills that have been introduced to address climate change; in the 110th Congress, in session from 2007-08, there were 195 bills on the topic.

The bi-partisan bill, S. 2191, directs the administrator of the Environmental Protection Agency to establish a program to reduce greenhouse emissions. Specifically, electric utilities, major industrial manufacturers and petroleum refiners and importers would be required to limit their emissions to 2005 levels beginning in 2012. Those sources must then cut their greenhouse gases 10 percent by 2020, with an end target of a 70 percent reduction in 2050. The bill would also create a “cap-and-trade” system for reducing emissions, and a national registry to oversee it.

Harrington says that hearings on the bill will be conducted in July. He hypothesizes that, since Bush has called for legislation addressing climate change, he will work hard to pursue legislation that both tackles the problem and is palatable to his constituency, rather than leaving that issue to the next administration.

Moreover, per Crass, while Congress attempts to pass climate change laws, the Environmental Protection Agency is being pressured to tackle the same issue through its rule-making process. That pressure stems from Massachusetts v. EPA, 127 S.Ct. 1438 (2007) in which a 5-4 U.S. Supreme Court directed the EPA to determine whether greenhouse gases from motor vehicles endanger the public health or welfare. Should the EPA make an affirmative endangerment finding, it must begin regulating greenhouse gas emissions from new motor vehicles. That hasn’t happened yet, but the agency has reportedly submitted an initial finding to the White House Office of Management and Budget.

The decision’s import is that it re-affirmed the agencys regulate greenhouse gases in the auto industry — and possibly beyond to other industries, says Crass — plus it created an environment where Congress will feel compelled to step in.

Then there are efforts for international treaties, such as the Kyoto Protocol — “which is not dead, but not very alive, either,” comments Crass, because it relies upon nations voluntarily taking action.

“We have developing economies in the far east, which are essentially saying, ‘Wait a minute. You got to industrialize and enjoy economic booms over the last 100 years.

We’re late to market, and you’re attempting to limit us in terms of our development.’”

Further complicating the notion of international accords, he says, are the questions of what court or tribunal would have jurisdiction, and therefore the power to enforce and police a decision.