New Climate Change/GHG Emission Evaluation Requirements for NEPA and SEC Filings

The SEC and CEQ have recently issued Interpretive Guidance and Draft Guidance, respectively, pertaining to climate impact.  The NEPA draft guidance (Feb.18, 2010) would require consideration if a proposed action is reasonably anticipated to cause direct annual emissions of 25,000 tons of CO2 equivalent GHG.  This threshold happens to match up to EPA's  recently issued GHG reporting rule.  Nevertheless, the Guidance makes clear that 25,000 tons is not intended to be a presumptive criterion for determining significant environmental impact.  It is literally, a way to assure that substantial GHG emissions are considered when determining whether a full EIS is appropriate. 

The SEC interpretive guidance, at 75 Fed. Reg. 6290 (Feb.8, 2010) is not legally binding but will be applied by SEC as if it were.  The guidance is not a model of specificity; however it essentially requires disclosure of potentially material impacts of both climate change legislation and climate change itself. It also covers both corporate operations and the materials used by such operations.  An energy company producing electricity or liquid fuels would be an obvious potentially covered party; but one could also be covered if the price of an agricultural commodity will be affected by climate change, or if the price of fuel will increase due to federal legislation. 

PADEP Proposes Revisions to NPDES Regulations

See 40 Pa. Bull. 847 (Feb.13, 2010) for extensive proposed revision to Chapter 92.  This section would be reorganized as well as adding several provisions necessary for consistency with EPA regulations, including Phase II Stormwater regulations.  There are new definitions and deletion of some existing definitions. There is also a revision of section 92.2 listing EPA regulatory provisions that are incorporated by reference.  If you are involved with municipal sewage treatment plants, take a look at proposed provisions to the secondary treatment requirements as well as a new "technology based" tertiary treatment requirement applicable to facilities which expand hydraulic capacity or increase pollutant loadings and discharge to an stream on the "impaired" list.  For industrial facilities, they are proposing a technology-based limit of 50 mg/l CBOD and 60 mg/l TSS regardless of federal effluent limitation guidelines.   Public comments are due by March 15. 

SEC Pronouncement on Climate Change Impact Disclosure

See 75 Fed. Reg. 6290 (Feb. 8, 2010) for SEC's new pronouncement on climate change impact disclosure requirements.  Sections III and IV of this Interpretive Release guidance constitute an update to Financial Reporting Release No. 1 (April 15, 1982).  Disclosure expectations go beyond potential pollution control requirements, and include potential material effects of pending legislation and regulations on supply costs and demand for produced goods. 

New EPA Renewable Fuel Standard (RFS2)

EPA issued a final rule earlier this week.  Until Federal Register publication, text can viewed at:  http://tinyurl.com/yb8pfmv Includes links to response to comments and final Regulatory Impact Analysis.  Among the important changes are a revised GHG Lifecycle Analysis for dry mill corn ethanol which gives it a passing grade (20% reduction threshold).  The final list of approved feedstocks has been modified and should be studied carefully.  Anything not on the list is only eligible for RIN credit after successful petition to EPA.