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Transportation and Climate Initiative Issues Draft Cap-and-Investment MOU, Seeks Public Comment

Yesterday, the Transportation and Climate Initiative (TCI), comprising 12 East-coast states and the District of Columbia, issued a draft Memorandum of Understanding (MOU) that would lay the framework for a cap-and-investment program covering transportation fuels across all participating jurisdictions. The draft MOU, as written, leaves unresolved many key points of the proposed program and seeks public comment by Friday, February 28, 2020. The participating jurisdictions plan to release a draft model rule sometime in 2020, and a final model rule by the end of 2020. Interested stakeholders should consider preparing comments on the MOU, which is the first step in the rulemaking process. 


TCI was formed in 2012 to “work to reduce greenhouse gas emissions, minimize the transportation system’s reliance on high-carbon fuels, promote sustainable growth and address the challenges of vehicle-miles traveled.” The group comprises 11 states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Virginia) and the District of Columbia. New Hampshire was formerly a TCI participant, but following the release of the MOU, NH Governor Chris Sununu unexpectedly announced that New Hampshire would no longer participate in the program. Throughout 2019, TCI participating jurisdictions, with support and guidance from the Georgetown Climate Center, have held a series of public workshops and other meetings to gather preliminary input on the design of the TCI program. The MOU represents the culmination of those efforts.

Overview of Draft MOU

The MOU contemplates that all participating jurisdictions will pass a Model Rule to implement the regional cap-and-investment program. The program would cover all motor gasoline and on-road diesel fuel at the terminal rack and require fuel suppliers to hold emissions allowances equal to the greenhouse gas (GHG) emissions from the fuel they distribute in the covered jurisdictions. Those allowances would be sold at auction and traded, and the program would set an initial allowance cap that would decline over time. The program also calls for investments of auction revenue in a variety of transportation-related programs.

Notably, many of TCI’s program elements remain undefined. The draft MOU and its appendix contemplate that the final MOU will resolve those elements, including:

  • Determination of the initial total emissions cap for the covered fuels.

  • Allocation of emissions allowances among the participating jurisdictions.

  • The schedule for reduction of the total emissions cap over time.

  • The initial compliance period.

  • Establishment of stability mechanisms such as a reserve of allowances that may be increased or decreased based on market conditions.

  • Whether to allow the limited use of carbon offsets.

  • Auction mechanics and a minimum reserve price for emissions allowances.

  • Investment of proceeds in other climate- or climate justice-related action.

  • General governance of the group.

TCI represents a major new cap-and-trade program that, if launched, would cover a significant swath of the U.S. economy. The MOU represents an important step in the regulatory design process, and interested stakeholders should consider preparing comments on the open subjects identified above, as well as other topics pertaining to the TCI program in general.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 357


About this Author

Brook Detterman Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Brook's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to navigate domestic and international climate change programs, develop renewable energy projects, and generate carbon offsets.  He helps his clients to negotiate, structure, and implement transactions related to carbon offsets and renewable energy, and works with clients during all phases of renewable energy and carbon offset project development.  Brook also represents clients during complex environmental litigation, having served as litigation and appellate counsel...

Benjamin E. Apple Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Ben helps clients navigate the complex environmental regulatory and litigation landscape of renewable energy development, brownfields due diligence and acquisition, and Superfund cleanups.

Ben also works closely on general environmental compliance issues surrounding electrical utilities in his role supporting firm Chairman Ben Wilson with his duties as Court-Appointed Monitor for the Duke Energy coal ash spill remediation project.

Ben’s core practice areas include:

  • Navigating the myriad environmental issues that arise in renewable energy development from land acquisition to environmental permitting to end-of-life waste management;
  • Guiding clients through the acquisition and leasing of brownfields, including due diligence and risk management;
  • Advising clients on defending against Superfund liability and negotiating remediation plans at major cleanup sites across the nation;
  • Litigating complex Superfund and tort matters arising out of historical contamination and present-day cleanups; and
  • Designing and implementing environmental, health, and safety (EHS) compliance systems to ensure regulatory compliance, especially in the electrical utility sector.

Prior to joining Beveridge & Diamond, Ben studied at Harvard Law School, where he served as a managing editor of the Harvard Environmental Law Review. Prior to law school, Ben worked as a lobster fishery biologist and research diver for the Florida Fish & Wildlife Research Institute.

Ben is located in Chapel Hill, NC, and practices out of our Washington, DC office.