ABA Section of Public Utility, Communications and Transportation Law Meets in D.C.

Federal legislative and regulatory implications of climate change

American Bar Association public utility and energy lawyers met recently in Washington, D.C., to hear tips from U.S. Senate and House insiders as well as attorneys and policy experts from the Securities and Exchange Commission, Federal Regulatory Commission and U.S. Environmental Protection Agency.

While senators and representatives would like to find middle ground on climate legislation, there appears to be significant distance to cover before the two chambers and parties can reach that targeted midpoint.

For example, the Kerry-Boxer climate protection bill (S. 1733) was reported out of the Committee on Environment and Public Works last fall with an economy-wide cap on carbon emissions, a sticking point to the climate bill.  However, David L. Cavicke, minority chief of staff for the House Energy & Commerce Committee, said that he doesn’t believe a related bill in the House (Waxman-Markey, H.R. 2454), will pass the Senate with the controversial cap.

The economy-wide cap and trade is a mechanism through which carbon emissions and other greenhouse gases would be reduced by limiting companies’ output of the gases, issuing emissions permits to companies for every ton of carbon dioxide they release, and allowing more efficient companies — ones that emit carbon dioxide below their permitted amount — to sell their permits to less-efficient companies.

Cavicke expressed his opinion simply in saying, “Economy-wide cap and trade — not going to happen.”

Toward the end of the session, some agreement was revealed on the issue of natural gas and the role it may play in future legislation.

According to Jason Albritton, who is on majority staff of the Senate Environment and Public Works Committee, “There is some momentum given the supply [of natural gas] …It has a seat at the table like solar power and wind.”

Cavicke followed by stating, “We like it.  It goes a long way to providing a bridge fuel.”

In the following session, Jim Budge, senior special counsel in the Division of Corporate Finance with the Securities and Exchange Commission, explained that lawyers need to know when to advise their clients to file disclosure reports to reveal how compliance with an environmental law or regulation may affect a company’s income.

Budge said that now, more than ever, lawyers must consider how environmental laws can affect information that might be pertinent to an investor — such as new regulations that could result in litigation.  He also suggested that for guidance, attorneys look at a recent SEC release on disclosure related to climate change.