1. GHG REGULATION & LITIGATION Update
Peter Glaser
Southeast Air Quality Conference
Atlanta, GA
October 4, 2007

2. Regulatory/Litigation Issues
EPA
State GHG Regulatory Efforts
Tort Lawsuits
Financial Disclosure Issues
Motor Vehicle GHG Issue
Other Issues

3. Are GHGs a CAA Pollutant?
Supreme Court: 5-4 Yes
Statute: broad definition of “air pollutant” and “air pollution”
Ruling does not mandate regulation
Remand: Endangerment
Discretion
- No non-endangerment policy factors allowed
- Scrutiny on endangerment finding

4. Potential Ramifications
Case not just about motor vehicle emissions
Large Stationary Sources
Remand of New York v. EPA - NSPS
PSD/NSR – are GHGs currently “subject to CAA regulation?
NAAQS?
Congress?

5. STATE LEGISLATION
CA and MN legislation regulates out-of-state emissions
RGGI
Western Climate Initiative

6. TORT LIABILITY? NOT YET
NY: 8 States sue 5 utilities over GHG emissions from powerplants in 20 states – seeks injunction - case dismissed – appellate decision expected shortly
MS: Individual property owners sue large number of energy/chemical companies alleging GHGs exacerbated Katrina – sought damages – case dismissed 8/30/07 – on appeal
CA – AG sues autos – seeks damages – case dismissed 9/17/07

7. BASIS FOR DECISION: POLITICAL QUESTION
“While at times, some judges have become involved with the most critical issues affecting America, political questions are not the proper domain of judges.”

8. GHG FINANCIAL DISCLOSURE
9/14/07 NY AG Cuomo issues subpoenas against 5 energy companies seeking information on companies’ potential financial liabilities from GHG emissions and whether they have been adequately disclosed
Implies failure to adequately disclose could be violation of NY law as misrepresentation or fraud

9. SEC PETITION
9/18/07 – Large institutional investors, state AGs, 11 state pension funds, environmental groups
Seeks: “Interpretive guidance clarifying registrants’ obligation under existing regulations to disclose material information concerning the effect of climate change and regulation of greenhouse gas emissions upon their financial condition and business operations.”
Also seeks immediate review of adequacy of climate change risk disclosures for companies filing 10-Ks and 10-Qs.

10. Can States Regulate Motor Vehicle Tailpipe GHGs?
Clean Air Act gives CA authority to set more stringent tailpipe emissions standards, allows other states to adopt CA standards – EPA waiver required
CARB establishes GHG emissions standards – about a dozen states follow suit, including VT
EPA Waiver
Lawsuits: preemption by CAFE
VT Court: upholds state

11. OTHER
Extent to which global warming should be considered in EIS (DM&E Railroad, Border Transmission Line, OPIC / Export-Import Bank financing)
Rural Utilities Service
Polar Bear Endangered Species
Federal Endangered Species Petition

12. Peter Glaser Troutman Sanders 401 9th Street, N.W., #1000
Washington, D.C