Will 2008 bring us changes on how we look at the environment? Will new regulation and initiatives emerge from unexpected corners this year? Or will there be legislative stalemate until after the November elections?

Consider the following:

  • At the December Bali conference, the international community, including the United States, agreed upon the "roadmap" for a post-Kyoto climate treaty to be negotiated over the next two years.
  • President Bush's final State of the Union Address spoke to the economy, national security, energy sources and greenhouse gases.
  • The G8 Summit, to be hosted by Japan in July, has selected an eco-logo for the Summit, out of 4198 different designs, to highlight the Summit's environmental and climate change agenda.
  • President Bush has signed into law the Energy and Independence and Security Act of 2007, which specifies that dramatically more biofuels—ethanol—be refined over the next 15 years, including mandating the use of technology which does not yet exist on a commercial scale.
  • Homeland Security considerations have emerged as a bellwether for energy independence and chemical risk regulation initiatives.

This November will reveal to us how far environmental initiatives will emerge from a cocoon, and what they may morph into. The accompanying pieces by Baker Hostetler Energy & Environment Practice Team members Pat Poole and Greg Flax give us a peek at what we know is forthcoming.

HIGH RISH FACILITY CHEMICAL SCREENING AND REPORTING

by Patricia A. Poole, Cleveland Office

On November 2, 2007, the U.S. Department of Homeland Security ("DHS") issued the final list of chemicals of interest and their corresponding screening threshold quantities, or "Appendix A," as part of the chemical Facility Anti-Terrorism Standards ("CFATS") regulations.

If a facility possesses a chemical of interest at or above the screening threshold quantities, the facility must perform the DHS's online "top screen." The top screen is an assessment tool the DHS uses to determine whether a facility is to be characterized as "high risk." Facilities deemed high risk will then be required to complete security vulnerability assessments and site security plans. Top screens are due to be completed within 60 days after the final publication of Appendix A, or by January 22, 2008.

Some of the chemicals listed in Appendix A are commonplace, including chlorine and propane; however, many are specialty chemicals. Reporting obligations are triggered based on a facility's possession of specific quantities of a listed chemical or chemicals. If a facility does not currently possess one or more chemicals at or above the screening threshold quantity, but later comes into possession of such a chemical or chemicals, the facility will have to complete and submit a top screen within 60 calendar days of possession. In addition, covered facilities that make material modifications to their operations or site must complete and submit a revised top screen within 60 days of the material modification.

For more information on the top screen process or Appendix A, contact the DHS website: http://www.dhs.gov/chemicalsecurity.

THE ENERGY INDEPENDENCE AND SECURITY ACT OF 2007

by Gregory R. Flax, Columbus Office

On December 19, 2007, President Bush signed into law the Energy Independence and Security Act of 2007, Pub. Law 110-140. The Act includes a number of conservation measures, designed to phase out the most inefficient incandescent light bulbs and promote "green" technology in federal buildings, among other things. The most notable provisions of the Act, however, are those mandating increased use of renewable fuels and improved automobile fuel economy.

To increase the use of renewable fuels, the Act sets a Renewable Fuel Standard ("RFS"), which will mandate the use of 36 billion gallons of biofuels by 2022; nearly five times more than is currently produced in the U.S. Under the Act, at least 21 billion gallons must be "advanced biofuels" produced from sources other than corn. And cellulosic ethanol – produced from grasses, agricultural wastes, and other sources – must constitute at least 16 billion gallons of those advanced biofuels.

In addition, the Act mandates improved automobile fuel economy by tightening Corporate Average Fuel Economy ("CAFE") standards for cars and light trucks. By the year 2020, auto manufacturers will be required to produce new vehicles that will deliver a combined fleet average of 35 miles per gallon; a 40 percent improvement on current fuel economy.

Lawmakers hope the Act, and especially its fuel economy and renewable fuel standards, will reduce America's dependence on foreign oil while creating environmental benefits.