Archive for February, 2010

OELC’s article on carbon capture and storage (“CCS”) was just published in the most recent edition of the Vermont Journal of Environmental Law, one of the nation’s premeire environmental law journals. The article is one of several related to climate change in the current issue of the journal.

The article, “A Regulatory Framework for Carbon Capture an Storage,” describes this emerging technology, which can be used to mitigate the climate change pollution emitted by coal-fired power plants. The technology aims to capture carbon dioxide emissions and then store the gas deep underground, where it cannot reach the atmosphere and contribute to climate change.

The article describes CCS and its potential benefits and proposes legislative and regulatory changes that can help spur the development of CCS.

“CCS has the potential to be part of a real world solution to today’s major energy and environmental challenge: climate change,” said Nolan Moser, an attorney for the OELC and co-author of the article. “By implementing some of the legislative recommendations contained in this article, we can help develop this important technology and reduce fossil fuel emissions.”

The Vermont Journal of Environmental Law is published by Vermont Law School.

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We just saw this decision from the Southern District of Ohio, striking an Ohio law that allows numerous exemptions from the federal Clean Air Act. The OEPA rule, Ohio Adm. Code § 3745-31-05, had allowed the agency to exempt certain smaller sources from Ohio’s State Implementation Plan–the state’s plan for complying with the Clean Air Act’s emissions limitations. The decision essentially said that OEPA cannot sanction emissions that violate federal pollution standards:

“The Director is ORDERED to implement and enforce O.A.C. § 3745-31-05 contained in the U.S. EPA approved Ohio SIP (i.e., to enforce BAT requirements against new and modified under 10 ton sources of NAAQS pollution), and the Director is ENJOINED from further implementation of the BAT exemption that contravenes the federally-approved Ohio SIP.”

The decision was the result of a citizen suit filed by the Sierra Club. Most federal laws such as the Clean Air Act allow adversely affected citizens to sue violators or states to compel enforcement.

While there are lots of interesting legal questions in this opinion (such as the extent of a state’s Eleventh Amendment immunity from citizen suits), the takeaway from the decision is that it could make it more difficult for states like Ohio to avoid the requirements of federal environmental laws. This is good news, and a courageous decision authored by Judge Abel.

READ the opinion

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The PUCO has just granted a Motion to Suspend an Application filed by FirstEnergy that would have allowed the company to begin using biomass material such as wood pellets at its Burger facility. If granted, the application would have allowed the company to receive renewable energy credits for the energy produced at the plant. That renewable energy credit would have been used to meet the company’s renewable benchmark requirements under Ohio Revised Code Section 4928.64 (S.B. 221). The PUCO summarized its decision in an entry released today:

On January 12, 2010, OEC filed a motion to suspend consideration of Burger’s application. OEC argues that the nature and scale of this project necessitate higher scrutiny and intensive review, which cannot be accomplished under the limited time provided by the 60-day automatic approval process. On January 19, 2010, FirstEnergy Generation Corporation (FirstEnergy), which owns the Burger facility, filed a memorandum in opposition to OEC’s motion to suspend. FirstEnergy argues that Burger’s application should be subject to the same level of scrutiny as any other matter pending before
the Commission, as there is no statutory or regulatory basis for OEC’s claim that larger projects require additional review…

The Commission finds that additional information is required to satisfy the requirements for certification. Therefore, good cause has been shown to suspend the 60-day automatic approval process for Burger’s application for certification, in order for the Commission to further review this matter.

Unfortunately, as the Commission explained, FirstEnergy’s application contained too few details about the source of the biomass material or procurement standards.

“We didn’t think it was clear that FirstEnergy should be allowed to receive renewable energy credit for this facility, so we intervened in the case and ultimately filed a Motion to Suspend the application,” said Will Reisinger, staff attorney for the OELC. “Now we will have more time to take a close look at this project,” said Reisinger.

This is the first time the PUCO has suspended such an application. “The Commission’s order shows just how much more FirstEnergy has to do to show that its plans comply with Ohio law,” added Reisinger.

The Commission’s order allows the parties to the case to file additional comments until March 29, 2010.

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