Supreme Court to Decide Proper Forum to Review WOTUS Rule Challenges

The U.S. Supreme Court on January 13, 2017, granted the National Association of Manufacturers’ request to determine whether the U.S. Court of Appeals for the Sixth Circuit was correct in concluding that it had jurisdiction to hear legal challenges to the Waters of the United States rule (WOTUS Rule). Continue Reading

FERC Issues Fast-Start Resources NOPR

On December 15, 2016, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) in Docket No. RM17-3-000 regarding fast-start resources operating in markets run by independent system operators (ISOs) and regional transmission organizations (RTOs). Specifically, the NOPR addresses the manner in which ISOs and RTOs should incorporate offers from fast start-resources into their Day Ahead and Real Time energy prices. FERC claims that these efforts are another step to improve price formation in wholesale electricity markets. Continue Reading

Congress Amends RCRA and Establishes a New Coal Ash Permit Program

On December 16, 2016, President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act into law. The WIIN Act is heralded as a bill addressing navigation and flood control, and authorizes funding to address drinking water emergencies in communities like Flint, Michigan. Included in the WIIN Act are amendments to the Resource Conservation and Recovery Act (RCRA) that create a new state permit program for the management and closure of coal combustion residuals (CCR) units. As we explained in our October 10, 2016 and September 23, 2016 blog posts, the amendment authorizes states to submit to the Environmental Protection Agency for approval of a permit program or alternative approval system for regulating CCR units that would operate in lieu of the CCR Rule.[1] The amendment allows states to adopt different technical standards from the CCR Rule so long as the standards are at least as protective as the federal rule. In circumstances where a state does not seek approval of a permit program or where EPA denies a state application, the amendments require EPA to adopt a permit program in lieu of the self-implementing rule, provided Congress provides funding for EPA to carry out a permit program. If no permit program is in effect in a state, the CCR Rule will remain self-implementing. Continue Reading

TSCA and Asbestos—a New Approach or One That Reveals the Same Old Problems?

On November 29, EPA announced that it will review the hazard and exposure risks caused by asbestos. Asbestos will be one of the first ten substances to be evaluated under the TSCA amendments commonly referred to as the Lautenberg Act. As we have discussed elsewhere, TSCA now requires EPA to produce a risk evaluation work plan for these substances by June 2017 and complete its evaluation within three years following. If EPA determines any of these substances pose unreasonable risks, then EPA must take further action to mitigate any risks. Continue Reading

Asbestos Among First Ten Chemicals to be Reviewed Under the Amended TSCA

EPA announced on June 29, 2016, that asbestos and nine other chemicals will be reviewed for hazard and exposure risks under the new procedures of the Lautenberg Chemical Safety Act, the June 2016 amendment to the Toxic Substances Control Act. Now that the ten chemicals have been chosen, EPA must produce a risk evaluation work plan for the chemicals by June 2017 and must complete the evaluations within three years. If unreasonable risks are found, EPA must take action to mitigate the unreasonable risks. Continue Reading

Oregon Federal Court Allows Children’s Climate Change Suit to Proceed

On November 10, 2016, a federal district court in Oregon allowed litigation to proceed against the federal government based on its alleged failure to protect future generations against the threat of climate change. See Juliana v. United States, No. 15-1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016). The decision represents the first time a court has determined that plaintiffs sufficiently alleged that the government’s conduct infringed their constitutional right to a clean and healthy climate system. Continue Reading

EPA Must Examine Effects of Clean Air Act Regulations on Jobs

Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA. Continue Reading

Methane Rule Update—Industry and Environmental Groups Seek Reconsideration

As we previously wrote on this blog, the U.S. Environmental Protection Agency finalized New Source Performance Standards for methane emissions from the oil and gas industry on June 3, 2016. Both industry and environmental groups later submitted petitions for reconsideration of certain aspects of these New Source Performance Standards (the Methane Rule), which are now pending for consideration by the EPA Administrator. Continue Reading

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