LPDD January Newsletter

New LPDD Model Laws

This month, the LPDD team published a new piece of model legislation providing liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for wind and solar energy developments on contaminated sites.

EPA encourages renewable energy development on current and formerly contaminated lands, landfills, and mine sites, yet many developers of renewable energy projects report hesitation concerning involvement with contaminated properties for fear that they may be liable under federal or state cleanup laws. This model legislation builds on existing liability protections for “bona fide prospective purchasers” (BFPPs) of brownfields sites, and removes the need for EPA to exercise enforcement discretion as to imposition of CERCLA liability. Additionally, this model legislation makes an explicit transfer of EPA authority for wind and solar brownfields sites to state response authorities, again in order to avoid uncertainty regarding EPA's discretionary imposition of liabilities.

New External Resources

modelclimatelaws.org is being continually updated with new, external legal resources. Below is a selection of recently added resources

• New York's Environmental Permitting In Disadvantaged Communities Legislation: In December, Governor Kathy Hochul of New York signed legislation to ensure that cumulative impacts are taken into consideration in the State’s environmental permitting processes when potentially polluting facilities seek to obtain or renew permits in disadvantaged communities. The new law goes beyond the environmental justice laws of any other state in barring the issuance or renewal of permits that would have a disproportionate impact.  In signing the bill, Governor Hochul indicated that she has reached agreement with the leaders of the state legislature to amend the law in the next session in a way that may soften some of its requirements.
• Minnesota Guidance on Climate Impacts in Environmental Review: In December, Minnesota updated its procedures for conducting environmental review under the Minnesota Environmental Policy Act to require developers of new highways, industrial plants, livestock feedlots and large housing developments to calculate their project’s carbon footprint and consider how to reduce their impact on the climate. Guidance is now available on the state's Environmental Assessment Worksheet form for assessing the carbon impacts of such projects.
• EPA's New Emissions Standards for Heavy-Duty Vehicles: In January, EPA finalized stricter emissions standards for heavy-duty vehicles. The agency’s new rule, part of its larger Clean Trucks Plan, marks the first time that pollution standards for semi trucks, delivery trucks, and buses have been updated in more than 20 years. The rule will go into effect when 2027 vehicle models are made available for purchase. The EPA’s rule will, for the first time, require manufacturers to adopt newer technology that reduces pollution from trucks when they are idle, driving at low speeds, or navigating stop-and-go traffic. By 2045, the agency estimates that heavy-duty vehicle nitrogen dioxide emissions will decrease by 48 percent as a result of the rule. The regulation is also expected to prevent up to 2,900 deaths by 2045.
• EPA Proposed Soot Exposure Regulation: Also in January, EPA proposed a reduction of the allowable annual exposure to industrial soot pollution (also known as PM2.5, or black carbon), a metric by which EPA judges local air conditions for purposes of permitting. EPA will solicit public comment before making a final decision later in 2023. EPA's proposal would lower the annual PM2.5 limit from an average of 12 µg/m3 (set in 2012) to somewhere between 9 and 10 µg/m3. Soot comes from many sources, like coal-burning power plants, diesel engines, and tobacco smoke, and, in addition to being a climate pollutant, is linked to a wide array of health harms including pulmonary and cardiovascular diseases. The standards themselves don’t directly set limits on any particular pollution source. Instead, they serve as a national guideline that can trigger EPA actions to ensure that air quality requirements are being met across the country.
• DOE's Proposed Distribution Transformer Efficiency Rule: In December, DOE proposed new energy-efficiency standards for distribution transformers aiming to reduce greenhouse gas emissions and potentially save consumers approximately $15 billion over 30 years. DOE said the proposed rules would impact three categories of distribution transformers, requiring them to include amorphous steel cores that are more efficient than those typically made of grain-oriented electrical steel. The agency estimates the proposed standards could reduce U.S. carbon dioxide emissions by 340 million metric tons over the next 30 years, generate energy savings in excess of 10 quads and pass on significant savings to customers. The rules would take effect in 2027.
• New York's Draft Guidance on Climate Risks in Banking: Following up on a 2020 letter, the New York Department of Financial Services recently released draft guidance about how lenders should prepare for intensifying extreme weather events and the clean energy transition. The proposal states that all state regulated banks and mortgage lenders should infuse climate considerations into their risk management processes and corporate governance structure. The proposal also states that banks should provide equal services to all communities, including those most vulnerable to rising temperatures.
• Enabling Industrial Decarbonization: In December, the US Climate Alliance published a report entitled Enabling Industrial Efficiency, a 116-page guidebook for state governments on strategies and pathways to reduce GHG emissions from the industrial sector. Drawing from a landscape analysis of more than 100 state policies, the guidebook details the multiple policy levers states can utilize to enable and advance five decarbonization pillars of industrial decarbonization — efficiency; electrification; low-carbon fuels and feedstocks; carbon capture, utilization, and storage technologies; and procurement.
• The Role of Biohydrogen in a Net Zero World: This January report from the Columbia SIPA Center on Global Energy Policy offers a technical analysis of the emerging applications for biohydrogen (or Bio-H2, that is, hydrogen produced from organic waste streams) when coupled with CO2 absorption and storage. The report notes that Bio-H2 can be particularly useful in hard-to-abate sectors, with potential for manufacturing zero carbon or even carbon-negative steel or chemicals. The report makes a number of recommendations for governments and policymakers, including: incorporating Bio-H2 into national hydrogen strategy and planning; establishing carbon-accounting methods as well as a governance infrastructure for biomass procurement and Bio-H2 production; and introducing government incentives for the production and consumption of carbon-negative Bio-H2.

Get Involved!

Not sure how to support our work? Check out our Get Involved page to see the many avenues by which lawyers can join us, and get in contact!

This update highlights and summarizes recent additions to the Legal Pathways to Deep Decarbonization (LPDD) website, which houses actual and model laws addressing the causes of climate change in the United States.

The Legal Pathways to Deep Decarbonization Model Law Project (LPDD-MLP) is a pro bono effort to draft model laws for use by legislators at the federal, state and local levels to support their efforts to achieve deep reductions in fossil fuel use and greenhouse gas emissions. The project is based on recommendations from the groundbreaking book Legal Pathways to Deep Decarbonization in the United States (Michael Gerrard and John C. Dernbach, eds., 2019). The work is supported by Columbia University's Sabin Center for Climate Change Law and Widener University Commonwealth Law School’s Environmental Law and Sustainability Center. Dozens of law firms and individual lawyers are contributing to this pro-bono effort as drafters, peer reviewers or in reaching out to policymakers.

Our website, modelclimatelaws.org, contains over 60 model laws that are a starting place for discussion and collaboration among elected officials, non-profit groups, and the private sector for enabling the U.S. to address climate change by reducing U.S. GHG emissions to zero by 2050 or earlier. The site includes several Top 10 lists for some of the key categories, like electric vehicles, PUC’s, buildings and other topics as a short-hand introduction. In addition, the site references hundreds of other actions that states and other governmental bodies have taken to move towards decarbonization more rapidly. By providing policymakers the tools to achieve deep decarbonization, the Project will help achieve a restructuring of the energy economy, thus alleviating the worst effects of climate change, which are disproportionately suffered by marginalized communities, while providing such positive benefits as economic security, social equity, and environmental justice (EJ).

Please contact us to talk about getting involved in drafting and peer reviewing legislation, to provide suggestions and feedback on the drafts and to talk about how we can help you support your climate change efforts.