By Tokesha M. Collins

On July 28, 2011, the Louisiana Department of Environmental Quality (LDEQ) denied a petition for the adoption of a rule to regulate fossil fuel carbon dioxide (CO2) emissions and to establish an effective emissions reduction strategy that will achieve a concentration of 350 parts per million (ppm) atmospheric CO2 by the year 2100. The petition was filed on May 4, 2011, by Kezia Kamenetz, of New Orleans, and Kids vs Global Warming, a non-profit organization formed in Oak View, California.

The petition requested that the LDEQ promulgate a rule containing the following steps to regulate CO2 emissions:

  1. Ensure that CO2 emissions from fossil fuels peak in the year 2100;
  2. Adopt a CO2 emissions reduction plan that reduces state-wide fossil fuel generated CO2 emissions by at least 6% annually until at least 2050 and expands Louisiana’s capacity for carbon sequestration;
  3. Establish a state-wide greenhouse gas (GHG) emissions accounting, verification, and inventory program; and
  4. Issue annual progress reports to ensure the public has access to current data regarding the effectiveness of Louisiana’s efforts to reduce fossil fuel CO2 emissions.

The petitioners argued that the LDEQ should grant the petition and promulgate the proposed rule because science shows that anthropogenic climate change is occurring. The petitioners also argued that climate change is already occurring in Louisiana and is projected to significantly impact Louisiana in the future. The petitioners asserted that the public trust doctrine reflected in Article XI § 1 of the Louisiana Constitution requires LDEQ to act to preserve the atmosphere and to “provide a livable future for present and future generations of Louisiana residents.” That constitutional provision states, in part: “The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people….”

In denying the petition for formal rulemaking, the LDEQ provided three reasons for its decision. First, the LDEQ stated that global climate change is an issue that is best addressed through “comprehensive federal legislation rather than through piecemeal regulation at the state level.” The LDEQ argued that such an approach was necessary to avoid “conflicting or inconsistent regulations among the states”. Next, the LDEQ stated that EPA has already taken several actions regarding GHGs and CO2 emissions, which, while currently subject to judicial review, are already being implemented by the LDEQ. In particular, the LDEQ noted that it has recently issued the first permit in the nation that addresses Best Available Control Technology for GHGs (the PSD and Title V permits for the anticipated Nucor Steel facility). The LDEQ also noted that EPA is in the process of developing additional GHG regulations and has already promulgated a GHG reporting program (see 40 C.F.R. Part 98). Finally, and with respect to the petitioners’ public trust doctrine argument, the LDEQ stated that the doctrine simply “does not establish ‘environmental protection’ as an exclusive goal. Instead, it requires a balance between environmental costs and benefits, considering economic, social, and other factors.”

A copy of the petition and the LDEQ’s response are available on the LDEQ’s Electronic Data Management System here.