EPA Tightens Pollution Controls for Steam Electric Power Plants

On September 30, 2015, the United States Environmental Protection Agency (EPA) issued the pre-publication notice of a final rule that sets new technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating industry.  Both the final rule and the proposed rule published in June 2013 were issued pursuant to a schedule approved by a federal court.[1]  EPA is preparing the final rule for publication in the Federal Register; it will become effective 60 days after its date of publication.  Implementation of its new requirements, however, will generally be through NPDES permits issued or renewed after November 2018. Continue Reading

New Ozone Standards Expected to Push Many Areas Out of Attainment

On October 1, 2015, EPA lowered the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb).  The new standard will replace the 2008 standard of 75 ppb, which EPA found inadequate to protect public health with an adequate margin of safety, as required under the Clean Air Act, and likely will result in changes in ozone attainment designations in a number of areas. Continue Reading

Supreme Court Asked to Review Total Maximum Daily Load Based on Lake Bed Sediment

On September 15, 2015, several California property owners petitioned the United States Supreme Court to review a California appellate  decision permitting a regional water board to establish the total maximum daily load (TMDL) for pollutants in McGrath Lake based on the concentration of pollutants in lake bed sediment.  Conway v. State Water Res. Control Bd., 185 Cal. Rptr. 3d 490 (Cal. Ct. App. 2015), petition for cert. filed, 84 U.S.L.W. 3133 (U.S. Sept. 15, 2015) (No. 15-337).  According to the property owners, no other case has substantively addressed “how TMDLs for lake bed or riverbed sediment may be expressed” or “the parameters of how the ‘load’ in ‘total maximum daily load’ may be expressed[.]” Continue Reading

FERC Issues Notice of Proposed Rulemaking (NOPR) Regarding RTO/ISO Collection of Uniform Organized Market Participant Data


FERC’s September 17, 2015 notice of proposed rulemaking (NOPR) in Docket No. RM15-23-000 would impose significant information-gathering requirements on participants in markets operated by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs). The rule would require each market participant to obtain a Legal Entity Identifier (LEI) and to report its LEI and extensive additional information about itself and its Connected Entities to its RTO/ISO who would submit it to FERC. FERC has designed the information requirement, which applies on a regular ongoing basis and must be updated as facts and circumstances change, to reveal direct as well as indirect, third party links between market participants that could afford the incentive and ability to engage in joint action to manipulate and defraud the markets. Continue Reading

Climate Action Plan Takes Shape

The summer of 2015 saw several controversial EPA rulemaking proceedings that will affect the energy, transportation, waste management and construction sectors across the United States.  These rulemakings implement President Obama’s 2013 Climate Action Plan, which has a goal of  reducing greenhouse gas (GHG) emissions to mitigate the impacts of climate change. Continue Reading

FERC Issues Notice of Proposed Rulemaking Regarding RTO/ISO Pricing Formation

On September 17, 2015, FERC issued a notice of proposed rulemaking (NOPR) regarding settlement intervals and shortage pricing in regional transmission organization (RTO) and independent system operator (ISO) real time electricity markets. The NOPR states FERC’s preliminary finding that RTO/ISO real time use of different time intervals for the dispatch (e.g., five minutes) and the settlement (e.g., one hour) of energy and operating reserve transactions is unjust, unreasonable and unlawful. FERC proposes to require that all RTOs/ISOs use the same time interval for the settlement and dispatch of these transactions. Continue Reading

Fifth Circuit Lets Citgo Fly Free

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s “take” provision.   Continue Reading

Federal Courts Split on Staying EPA’s “Waters of the United States” Rule

Several courts have ruled on motions for preliminary injunction to stay a new U.S. Environmental Protection Agency (EPA) Clean Water Act rule, with only one court granting an injunction. Thursday, August 27, 20015, a North Dakota federal court stayed the effectiveness of EPA’s rule clarifying the definition of “Waters of the United States” (WOTUS) under the federal Clean Water Act. This stay occurred just one day before the rule was to go into effect on August 28, 2015. North Dakota v. U.S. EPA, NO 3:15-cv-59 (D.N.D.). The judge held that an injunction was warranted because EPA (1) exceeded its authority in codifying what the court called an “exceptionally expansive” view of the definition; and (2) failed to comply with procedural rules in promulgating the rule. The court said original jurisdiction vested in his court and not the court of appeals because the rule has “at best only an attenuated connection to any permitting process.” Continue Reading

Ninth Circuit Establishes Standard for EPA Policy Reversals

The past few years have seen an increase in the federal executive branch launching significant policy initiatives. While some of these policy initiatives may continue regardless of who holds the presidency, others may change depending on policy views.

On July 29, 2015, the Ninth Circuit Court of Appeals examined what standard to use when evaluating executive branch changes in policy that resulted from reversals of factual findings made by a prior administration. Organized Vill. of Kake et al v. U.S. Dep’t of Agric. et al, No. 11-35517, 2015 WL 4547088 (“Kake”). The court held that an agency must now provide a “reasoned explanation” of policy changes that are occasioned by different factual findings. Continue Reading

EPA’s Newest Attempt at Aggregating Emission Sources in the Oil & Gas Industry

EPA has proposed to resolve an issue that has vexed the oil and gas industry for years—how to determine which operations compose a single “source” for permitting decisions.  Unfortunately, the proposed resolution introduces new ambiguities.  The proposal comes as part of President Obama’s Climate Action Plan, but in reality is the latest chapter in EPA’s storied history[1] of attempting to establish a clear policy to determine when emissions from physically separate sources should be aggregated for purposes of determining permitting obligations under the Clean Air Act. Continue Reading