Jump to Navigation
Jump to Content

Offsets Under §111 of the Clean Air Act: The Inconvenient Need for Additionality and the Role of Super-Categories

March 2013

Citation: 43 ELR 10257

Issue: 3

Author: Richard B. Herzog and. Nicholas W. Fels

On the assumption that a trading system can constitute a performance standard for GHGs under the CAA, the question arises whether “offsets” should be creditable for compliance. Crediting reduces compliance costs. For environmental integrity, however, creditable offsets should satisfy accepted offsets criteria, including additionality.  Incorporating those criteria into a performance standard may be impractical, achievable only incrementally, and entail legal risk. A probably viable alternative would define a super-category based solely on emission of GHGs, within which trading would be allowed.

Richard B. Herzog is a partner in the Washington, D.C., office of Harkins Cunningham LLP, where he practices in the field of economic regulation across several industries, including energy. He is the former Deputy Administrator for Policy in what was then the Economic Regulatory Administration within the U.S. Department of Energy. Nicholas W. Fels is a retired partner at Covington & Burling, LLP, where he practiced energy law at the federal and state levels. Herzog and Fels have worked together on a pro bono basis with
several NGOs on matters relating to climate change.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: