Congressional Action

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1 Climate Regulation Without Congressional Action Michael B. Gerrard Andrew Sbi Sabin Professor of Professional lpractice Director, Center for Climate Change Law Columbia Law School Senior Counsel Arnold & Porter LLP

2 U.S. Climate Regulation: Possible Paths Forward EPA Rulemaking Endangerment Finding [Murkowski] Courts Survives Tailoring Rule Courts Survives Rockefeller Superseded by legislation Implementation; BACT, NSPS, etc. Legislation Not enacted Energy only Comprehensive Multiple Rulemakings Post 2012 Kyoto agreement Multilateral agreements No international agreements State/Regional Cap and Trade Preempted Not preempted Programs linked Programs not linked Other rules State implementation Common law litigation: Connecticut v. AEP Reversed by Supreme Court Survives appeal Displaced by regulations Not displaced Further proceedings Further filings 2

3 EPA ACTIONS Greenhouse gas reporting rule Endangerment finding Cars and trucks rule Revised PSD and Title V thresholds Tailoring rule State/federal implementation plans Best Available Control Technology guidance 3

4 OTHER FEDERAL ACTIONS SECguidance on securities disclosure and climate change CEQ guidance on NEPA and climate change FTC guidance on green marketing claims Executive Order on federal procurement 4

5 U.S. Climate Regulation: Possible Paths Forward EPA Rulemaking Endangerment Finding [Murkowski] Courts Survives Tailoring Rule Courts Survives Rockefeller Superseded by legislation Implementation; BACT, NSPS, etc. Legislation Not enacted Energy only Comprehensive Multiple Rulemakings Post 2012 Kyoto agreement Multilateral agreements No international agreements State/Regional Cap and Trade Preempted Not preempted Programs linked Programs not linked Other rules State implementation Common law litigation: Connecticut v. AEP Reversed by Supreme Court Survives appeal Displaced by regulations Not displaced Further proceedings Further filings 5

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11 U.S. Climate Regulation: Possible Paths Forward EPA Rulemaking Endangerment Finding [Murkowski] Courts Survives Tailoring Rule Courts Survives Rockefeller Superseded by legislation Implementation; BACT, NSPS, etc. Legislation Not enacted Energy only Comprehensive Multiple Rulemakings Post 2012 Kyoto agreement Multilateral agreements No international agreements State/Regional Cap and Trade Preempted Not preempted Programs linked Programs not linked Other rules State implementation Common law litigation: Connecticut v. AEP Reversed by Supreme Court Survives appeal Displaced by regulations Not displaced Further proceedings Further filings 11

12 URL: To receive updates to this chart, send a request to Past updates Graph of cases arranged by type Graph of cases arranged by year CLIMATE CHANGE LITIGATION IN THE U.S. Statutory Claims Force Government to Act Regulate Private Conduct Clean Air Act Other Statutes Columbia Law School Center for Climate Change Law Databases: Non-U.S. Climate Litigation Chart Legislation Tracker Regulation Tracker Municipal Law Resources Climate Law Bibliography Securities Disclosure Resources Offset Protocol Compilation Green Building Law Update Climate Change Blog Project Challenges Coal-Fired Power Plant Challenges Stop Government Action NEPA Common Law Claims Public International Law Claims State NEPAs Challenges to State and Municipal Vehicle Standards Industry Lawsuits Challenges to Federal Action Challenges to State Action For detailed legal analysis, see Global Climate Change and U.S. Law (ABA 2007) Climate Protesters and Scientists Created by: Michael B. Gerrard and J. Cullen Howe Date last updated: October 7, 2010 Please send updates to: Case Index 2010 Arnold & Porter LLP 12

13 Types of Climate Cases Filed (as of October 8, 2010) Regulate Private Conduct (6, 2%) Climate Protests (5, 1%) International ti llaw Petitions (3, 1%) Common Law Claims (5, 2%) Challenges to State Vehicle Standards (11, 3%) Challenges to State Enactments (14, 4%) Coal Cases (74, 22%) NEPA (40, 12%) State NEPAs (32, 9%) Endangered Species Act (25, 7%) Other Statutes (18, 5%) Challenges to Federal Action (91, 27%) Clean Air Act (16, 5%) 13

14 Climate Litigation: Filings Nu umber of Cas ses Other Common Law NEPA Coal Industry Environmentalist Year (through Oct. 8, 2010) 14

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