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Carbon Trading

April 08, 2008

Guest Column on EnergyLaw360

I recently published a guest column on EnergyLaw360 entitled Laws Set Stage for Carbon Trading Opportunities.  The article discusses the new federal greenhouse gas emissions reporting law that was enacted and how EPA must publish final rules by September 2009.  These rules will serve as the foundation for coming climate change legislation that will create a cap-and-trade system for regulating greenhouse gas emissions, and create significant opportunities in developing greenhouse gas emission reductions that can be monetized in the form of carbon credits.

March 22, 2008

John McCain Traveling through Europe Discussing Greenhouse Gas Restrictions

Senator John McCain has been traveling in Europe, and has met with the current Prime Minister Gordon Brown of the United Kingdom and former Prime Minister Tony Blair.  Their talks were wide ranging, but included discussions of actions to address climate change and the use of a cap-and-rade system to achieve greenhouse gas reductions.  They also discussed a post-Kyoto treaty.

"I want to make clear again we will not have a global agreement that is effective unless India and China are part of it," McCain said.  "I am convinced that if we work at it, we will convince India and China that it is in their interests to be part of a global agreement to reduce greenhouse gas emissions.  I think that there will be sufficient international pressures and domestic pressures as well as the facts of the environmental challenges that will bring them into a global agreement."

Senator McCain also met with the European Union environment commissioner Stavros Dimas, who oversees Europe’s emissions trading scheme.

March 19, 2008

Pension Funds Reach Agreement with Dynegy to Disclose Climate Risks by the End of the Year

Two of the largest pension funds have forced Dynegy Inc., to agree to report on climate risk by the end of this year, and how the company will address this risk.  The California State Teachers' Retirement System and North Carolina Retirement Systems, both of which owned substantial shares in the company, filed a shareholder resolution with Dynegy in January to require the company to report on the feasibility of adopting specific greenhouse gas reduction goals for its existing and proposed power plants.

In exchange for an agreement by Dynegy to make the report, the two pension funds withdrew the resolution.  Dynegy is apparently developing a plan to disclose climate change information to its shareholders, which likely will include the company’s annual greenhouse gas emissions, as well as a plan for mitigating those emissions.  The mitigating steps may include purchase of greenhouse gas offsets or carbon credits.

At the same time, Dynegy is planning to construct coal-fired power plants in Arkansas, Georgia, Iowa, Michigan, Nevada and Texas. Two plants are under construction in Arkansas and Texas.

This development indicates a growing capability of institutional investors to force climate change disclosure from major companies.

January 05, 2008

Congress Includes Greenhouse Gas Reporting Requirement and Registry in Omnibus Spending Bill

On December 21,2007, Congress moved forward with the foundation of any future greenhouse gas regulatory system by including in the Omnibus Spending bill a requirement that EPA promulgate an economy-wide greenhouse gas reporting regulation and create a greenhouse gas registry.  President Bush has signed this spending bill, making this obligation law.  A proposed regulation is due nine months from December 2007, and a final regulation 18 months from December 2007.  The details of this system will be developed by EPA unless additional legislation is passed in the next nine months further defining the parameters of the reporting requirements and registry.  Absent such legislation, how EPA will handle this mandate under the current Administration is not clear, particularly with respect to which industries and sources will be required to submit reports, what de minimis level of emissions will be set, and what other exemptions will be provided.  In any event, it would appear that a greenhouse gas reporting requirement will go into effect in less than two years.

November 15, 2007

Nine Midwestern States and the Province of Manitoba Enter into Greenhouse Gas Accord

Governors of nine midwestern states, along with the Canadian province of Manitoba today signed the Midwestern Regional Greenhouse Gas Reduction Accord to establish a regional multisector cap-and-trade program to reduce greenhouse gas emissions and to promote the use of renewable energy.  With the Western States Climate Initiative and the Regional Greenhouse Gas Initiative in the northeast, the action by the Midwestern states brings the number of states to 22 that have committed to reducing greenhouse gas emissions. 

The governors were Governor Jim Doyle of Wisconsin, Governor Tim Pawlenty of Minnesota, Governor Rod Blagojevich of Illinois, Governor Mitch Daniels of Indiana, Governor Chester J. Culver of Iowa, Governor Jennifer Granholm of Michigan, Governor Kathleen Sebelius of Kansas, Governor Ted Strickland of Ohio, Governor M. Michael Rounds of South Dakota.  The Premier of Manitoba, Gary Doer, also signed the agreement.

Some of the key aspects of the Accord are as follows:

·     Establish greenhouse gas reduction targets and timeframes consistent with MGA member states’ targets;

·     Develop a market-based and multi-sector cap-and-trade mechanism to help achieve those reduction targets;

·     Establish a system to enable tracking, management, and crediting for entities that reduce greenhouse gas emissions; and

·     Develop and implement additional steps as needed to achieve the reduction targets, such as a low-carbon fuel standards and regional incentives and funding mechanisms.

These Midwestern states now must set firm emissions reductions targets and timetables for reducing greenhouse gas emissions.

The governors are also calling for greater use of non-petroleum energy sources such as wind power and grain-based ethanol.    Under the agreement, 15 percent of all gasoline stations in the region would be selling ethanol mixes by 2015, and one-in-four by 2025. 

These states combined are the fifth largest emitter of greenhouse gas emissions behind the United States as a whole, Russia, China and India. 

This new accord puts even greater pressure on Congress, as almost half the states have already committed to restricting greenhouse gas emissions.

September 13, 2007

ConocoPhillips May Be First Company in the US Required to Reduce or Offset Greenhouse Gas Emissions at California Refinery

In what may be the first payment for mandatory greenhouse gas emission reduction credits or “carbon credits” in the United States, ConocoPhillips agreed to pay around $10 million to offset greenhouse gas emissions that will be emitted by the expansion of its Bay Area refinery. On Tuesday, September 11, Jerry Brown, the California Attorney General, announced that an agreement had been reached between the State and ConocoPhillips by which the company pay over $7 million for a carbon offset program that includes buying and scrapping older cars that generate more greenhouse gas emissions. The company will donate $2.8 million to reforestation efforts in California, donate $200,000 for restoration of the San Pablo Bay wetlands, and conduct an audit all of its California refineries to identify potential additional greenhouse gas reductions that could be implemented. 

The State has agreed to dismiss its appeal of the approvals that the company was seeking in order to expand it Contra County Refinery.  ConocoPhillips' proposed oil refinery expansion, known as the Clean Fuels Expansion Project, includes a hydrogen plant that will help make an estimated 1 million gallons per day of cleaner-burning gasoline and diesel fuels from the heavy portion of crude oil.

Interestingly, the battle was fought over land use, rather than environmental permits, such as air emission permits.  In September 2005, Contra Costa County prepared an environmental impact report, which was later certified by the county's planning commission. However, the Attorney General challenged the environmental documentation for the project this May, saying it did not adequately address the extra 500,000 to 1.25 million metric tons of carbon dioxide that would be emitted each year.

The agreement comes before the California climate change legislation goes into effect. The legislation will call for reducing greenhouse gas emissions in California to 1990 levels by 2020, a 25% reduction. The agreement with ConocoPhillips will stay in effect until 2012, when that mandatory cap goes into effect.

September 04, 2007

Positioning Yourself for Opportunities in Emerging Carbon Markets Seminar to Be Held in Dallas September 20th

The greenhouse emission reduction credit or “carbon credit” market has become a multi-billion dollar industry for credits issued under the Kyoto Protocol internationally and for voluntary reduction credits in the United States. This market is projected to be worth $2 trillion by 2012, with new legislation, potential litigation, as well as new business opportunities on the horizon. To provide insight into this important topic, Sustainable Dallas hosts a luncheon and seminar, Positioning Yourself for Opportunities in Emerging Carbon Markets on Sept. 20, 12-5 p.m., at the Nasher Sculpture Center in Dallas, Texas.

The event features nationally recognized experts who will offer an introduction to carbon trading and discuss how businesses and law firms are making moves to profit from this new market. Speakers include Tom Cushing of the Chicago Climate Exchange, Garrett Boone of Texas Business for Clean Air, Tim Smith of Element Markets of Houston, Josh Margolis of CantorC02e, and Scott D. Deatherage of Thompson & Knight LLP.

This conference is designed for business executives, legal counsel, investment advisors, members of the media, university professors and students, and other professionals with an interest in carbon markets, cap and trade systems, legislation, regulation and litigation that will come as governments and businesses continue to address climate change. CLE credit for attorneys is pending. Sustainable Dallas is a nonprofit sustainable business organization serving the Dallas/Fort Worth region, providing education, networking, entry-level sustainability consulting and promotional services to its members.

This conference is designed for business executives, legal counsel, investment advisors, members of the media, university professors and students, and other professionals with an interest in carbon markets, cap and trade systems, legislation, regulation and litigation that will come as governments and businesses continue to address climate change. Registration is available at www.sustainabledallas.org

July 18, 2007

Climate Change Due Diligence: A New Aspect of Environmental Due Diligence?

           Now that California and six western states and ten northeastern states have passed laws and entered into regional programs to limit greenhouse gas emissions, the United States is entering a carbon-constrained economy.  Nine or more bills have been filed in Congress.  As companies enter into mergers and acquisitions, the potential costs of large carbon footprints at facilities or companies being acquired is becoming a significant concern.

            Not only the regulatory costs of potential emission reductions or offsets, but the “license to operate” may in jeopardy.  The case of TXU and it’s attempt to gain permitting for eleven coal-fired power plants demonstrates that the public and many legislators may prevent the construction of large greenhouse-gas-emitting facilities. The Wall Street Journal reports that Mirant, a utility that just emerged from bankruptcy, is facing limits on its profitability as a result of carbon regulation in the northeastern states.

            Many investment companies looking to acquire facilities in Europe are evaluating greenhouse gas emissions and the allowances and credits that have been purchased to ensure the ability to continue operating.  In the US, some companies have begun entering contracts to secure carbon credits to offset expected limits on greenhouse gas emissions.

            As we appear to be moving to increasing constraints on carbon dioxide and other greenhouse gases here, the need to begin conducting greenhouse gas evaluations and considering the ability to reduce emissions or the availability of offsets will begin to be a significant part of environmental due diligence.  It will become critical to evaluate not only compliance risks arising from carbon emissions, but also the very the value of facilities and companies being acquired.

June 16, 2007

Australian Article Reports Company Frustration That Investors Are Not Valuing Their Reductions in Carbon Emissions

The article below from the Herald Sun discusses concern of certain Australian companies that their actions ahead of a carbon cap-and-trade system in Australia to reduce their carbon emissions has not been recognized by the markets and investors.  The article suggest not only the potential of the market to not fully recognize and appreciate the risk from carbon or greenhouse gas emission limitations, but suggests actions take to reduce carbon emissions in preparation for climate change legislation may not be appreciated by the market as yet.  This throws a new wrinkle in the issues relating to environmental governance and disclosure in the sense that companies are usually worried about the need and effect of disclosing risks from carbon emissions and climate change regulation.  Here the issue is not the failure to disclose or the concern of a reduction in stock price because of carbon exposure, but the concern that proactive steps have not been reflected in an increase in stock prices.

The global warming debate may be in from the cold in Australia, but some companies are accusing the share market of freezing them out with sluggish attitudes to climate change liabilities.

More than a fortnight after the Federal Government gave carbon emissions trading the nod, brokers and fund managers are being described as too slow to value the upside of listed companies that have taken steps to minimise climate change risks to their earnings.

"A number of organisations cannot understand why the market is refusing to factor these initiatives into share prices," Joanne Saleeba, chief executive of Investor Group on Climate Change, told BusinessDaily. ASX rules prevent these companies from speaking on the record about some aspects of their share prices. But Ms Saleeba said behind the scenes there was a growing frustration among companies that have implemented carbon reduction programs in recognition that global warming carries risks to investor returns.

Origin Energy communications chief Tony Wood told BusinessDaily that he had seen no evidence of the market factoring in the $40 million worth of investments Origin has made in solar sliver technology.

Origin, whose other investments include gas-fired generators, geothermal technology and some hydro-electric interests in New Zealand, believes the Australian share market has proved it is sceptical about the earnings potential of clean energy.

Greg Pritchard, finance director at Energy Developments - one of the largest listed renewables companies - said the group's power generation from coal mine, methane and landfill gas sites around the world had helped it offset about nine million tonnes of emissions.

"When carbon trading starts here in 2012, this will become a valuable part of our balance sheet," Mr Pritchard said.

But not everyone believes the market should wait four years to put a value on abatement.

"These efforts are being overlooked by the market and it is very frustrating for companies leading the charge into an era of carbon restraint," said Ms Saleeba, whose organisation represents institutions with $225 billion of funds under management.

The group's membership includes AMP Capital Investors, Babcock & Brown, BT Financial Group, Colonial First State and Goldman Sachs JBWere.  It was established two years ago to bring to the market's attention the fact that big investors viewed climate change liabilities as a serious risk to the earnings of companies.  Those risks are divided into five categories: regulatory, physical, litigation, competitiveness and reputation.

Goldman Sachs JBWere head of quantitative research Andrew Gray said there was a "disconnect" between companies that had advanced their business strategies to address these risks and stockbrokers and fund managers that were not reflecting this in their analysis.

"When you consider that many institutional investors have for years taken climate change risk seriously, the disconnect becomes more pronounced," Mr Gray said.

Part of the problem lies in the fact that the federal government is yet to set carbon emissions targets and decide how permits will be distributed.

The uncertainty makes it too difficult for researchers to make a call, according to Dr Ian Woods, senior research analyst at AMP Capital Investors.

He acknowledged that institutions were years ahead of the market on the issue.

"We have been looking at how well companies plan for climate risk for five years because it gives us a good idea of how they plan for risk generally," Dr Woods told BusinessDaily.

Scott Marshall, head of industrial research at Shaw Stockbroking, confirmed that "clean" initiatives were not being factored into valuations by most analysts.

"Being green may be good for the environment, but the only way it is going to be good for the share price is if companies can show it saves money," Mr Marshall said.

"Until we know more about emissions trading, there's no value assigned to stocks for being green.

"It is just too hard to value at the moment."

Mr Shaw said there was "a lot of paperwork estimating the cost of emissions going around between stock brokers and a lot of office commentary on carbon trading", but at this stage this information was not being used to assess risk profile, despite client concerns.

A number of brokers have admitted that big clients and institutions are leaning on advisers for more clarity on how portfolios are likely to be affected when carbon trading starts.

BusinessDaily is aware that numerous organisations have already conducted extensive modelling under different scenarios to assess the impact of carbon trading on different sectors and even individual companies.

But for a number of reasons, the view is that it is premature to reveal this information until the government releases more details on how emissions trading will work.

One organisation that refused to be named said it had already done thorough economic modelling but had been pressured by a government department to not release its findings.

"We used a grant to do the research and now that we have finished, some people are dragging their feet about making it public," the unnamed source said.

But the lid is likely to lift in coming weeks as a number of reports are released in answer to rising demands from institutions for information.

The Climate Institute, which published a climate change report on the electricity sector last month, is expected to produce more detailed analysis at the end of this month on how other sectors are likely to be affected by carbon pricing.

Also at the end of June, institutional investors will begin to have a better idea of how much carbon most of Australia's top 100 companies are emitting thanks to a voluntary reporting exercise.

The investors hope to be able to assess and compare strategies the companies are using to protect shareholder returns from global warming liabilities.

The information will be collated by the London-based Carbon Disclosure Project into a global report and publicly released in September.

Among the project's Australian signatories are AMP Capital Investors, ANZ Bank, BT Financial Group, National Australia Bank, Hastings Funds Management, Portfolio Partners and a number of the biggest superannuation funds.

Last year, just 10 per cent of companies surveyed provided sufficient information for the institutions to gain an insight into how they will manage environmental liabilities.

This year, the response rate from top 100 companies is greater.

The Australian end of the disclosure project is being organised by Goldman Sachs JB Were and the Investor Group on Climate Change.

Mr Gray said responses reveal which companies are fully integrating global warming issues into their planning and are likely to be "better able to turn the climate change issue into a source of competitive advantage and therefore shareholder value".

In a report on the project last year, Mr Gray named 20 Top-100 companies that produced the strongest inclination to embrace environmental risks.

Mainstream investors want to, and need to, consider how exposed they are to climate change liabilities, Mr Gray wrote.

June 02, 2007

Thompson & Knight Announces New Climate Change and Renewable Energy Practice

DALLAS

— The international law firm of Thompson & Knight LLP is continuing its role as one of the top energy law firms in the world with the launch of the firm’s Climate Change and Renewable Energy Practice Group.

The potential impact of the recent announcement from President George Bush about the administration’s new stance on global climate change already is raising questions from businesses nationwide.

 

Firm partner Scott Deatherage will lead the group, which is made up of 26 attorneys with broad experience in handling renewable energy projects and regulatory issues.  The group includes attorneys from the Firm’s environmental regulation and emissions trading, project development, finance, corporate, and national and international energy practices.

 

The Climate Change and Renewable Energy Practice Group includes attorneys from Thompson & Knight’s U.S. offices and international offices in in Mexico, Brazil, Algeria and England. Members of the group will assist clients in the development of business opportunities related to greenhouse gas emission reduction credit projects and credit trading markets, as well as helping companies in the growing renewable energy markets, including firms involved in wind, solar and biofuel technology.

 

"This initiative will allow our Firm to combine its significant energy, project development, tax and finance experience with our experience in wind energy projects, biofuels such as ethanol and biodiesel, and landfill gas capture," says Pete Riley, managing partner of Thompson & Knight.

 

Mr. Deatherage, the practice group leader, says regulation of greenhouse gases and trading in emission reduction credits have created significant opportunities in new markets. “This is a new era for business in terms of environmental risks and regulations, but also environmental opportunities,” says Mr. Deatherage. “Limits on greenhouse gas emissions, energy efficiency requirements, renewable energy mandates and trading in renewable energy credits are just a few of the many issues that corporate America will be facing in the coming years.”

 

About Thompson & Knight

 

Since 1887, Thompson & Knight LLP has consistently made a positive impact on its clients’ successes. With its practice focused on the energy industry, the Firm has extensive resources in litigation, tax, insolvency, and international energy matters. The Firm has approximately 420 attorneys, and has offices and alliances in North America, South America, Europe, and Africa. Thompson & Knight represents companies, government entities, and individuals in local, regional, and national markets around the world.