As Gas Leaks, Pressure for Regulation Builds

Southern California Gas Company’s Aliso Canyon storage facility has been leaking natural gas since October 23, 2015. Company officials have recently announced that a relief well is nearly finished and the leak will soon be plugged. However, for the natural gas industry as a whole, the legal and regulatory challenges have just begun. Continue Reading

Supreme Court Stays Clean Power Plan

On February 9, 2016, the U.S. Supreme Court issued a 5-4 decision staying implementation of the Clean Power Plan until the D.C. Circuit rules on challenges to the Plan. The Court left open the possibility that it would review the D.C. Circuit’s ultimate decision.

The decision delays President Obama’s Climate Action Plan. The Clean Power Plan is its key climate change rule. It requires states and utilities to reduce carbon dioxide (CO2) emissions by generating less electricity from coal, and more from lower carbon-emitting sources like natural gas, or zero-carbon sources like solar and wind. The Plan has an ambitious goal: to reduce CO2 emissions 32% below 2005 levels by 2030. Continue Reading

Environmental Groups Challenge EPA Refinery Rule

Environmental groups continue their attack on long-standing rule provisions under the Clean Air Act that limit or exclude liability related to “startup, shutdown, and malfunction” events. Historically, USEPA has acknowledged that it may be impracticable, if not impossible, for industry to meet emissions standards during certain periods, including during startup, shutdown or malfunction events, when emissions are typically higher than during normal operation. However, in May 2015, in response to prior challenges, USEPA instructed 36 states to revise their implementation plans with regard to SSM events. Continue Reading

Supreme Court Issues Ruling on FERC Order No. 745

On January 25, 2016, the Supreme Court of the United States issued its decision in Federal Energy Regulatory Commission v. Electric Power Supply Association et al (EPSA), restoring Order 745 after the DC Circuit vacated the Order on May 23, 2015. Continue Reading

BLM Targets “Waste” in the Oil and Gas Industry

On January 22, 2016, the Bureau of Land Management (BLM) proposed a new rule targeting oil and gas producers on federal and Indian lands. The rule aims to reduce waste of natural gas by limiting flaring, prohibiting venting, and requiring operators to identify and repair leaks. Additionally, the proposal would grant BLM discretion to increase the royalty rate for future leases. The rule represents the latest in a series of recent efforts by state and federal regulators to limit greenhouse gas emissions by the oil and gas production sector. BLM will accept comments on the proposed rule for 60 days after it appears in the Federal Register. Continue Reading

Clean Power Plan Will Stay in Effect Pending the Outcome of Litigation

The D.C. Circuit denied industry petitioners’ motions to stay the effectiveness of the Clean Power Plan on Jan. 21. In a two-page order, the court found the petitioners had not satisfied the requirements for a stay pending review and issued an expedited case schedule.

The order asked parties to submit a format for briefing as well as a schedule by Jan. 27, 2016 that ensures that all briefing will be complete by April 22, 2016. Parties will debate whether the cost of implementing the rule is too great and whether EPA has exceeded the bounds of its authority, among numerous other issues. Oral arguments are scheduled to begin June 2, 2016 and continue to June 3 if necessary. This schedule could allow for a court decision before initial state plans are due in September 2016. Continue Reading

Third Circuit Holds Diligent Prosecution Bar Does Not Preclude Jurisdiction for Citizen Suit

On January 6, 2016, the Third Circuit held that the Clean Air Act’s diligent prosecution bar cannot be the basis for a motion to dismiss for lack of subject matter jurisdiction.  Instead, the bar requires citizen suits under the Act to be dismissed for failure to state a claim. Group Against Smog & Pollution v. Shenango, Inc., Case No. 15-2041 (Jan. 6, 2016). Several federal environmental laws bar citizen suits where regulators are “diligently prosecuting” a civil action against the alleged violator. With this case, the Third Circuit became the third appellate court to break with past precedent and hold that a diligent prosecution bar is not jurisdictional. This change will require defendants filing motions to dismiss based on the diligent prosecution bar to do so before they answer a complaint. Additionally, it will require courts to accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Industry defendants should be aware of these procedural changes as they prepare to respond to citizen suits. Continue Reading

Civil Rights Panel to Review EPA’s Coal Ash Disposal Policies on Jan. 22

The U.S. Commission on Civil Rights is holding a hearing on January 22, 2016 to review the environmental justice implications of EPA policies on coal ash disposal. The commission is conducting this review as part of its annual report on agencies’ progress implementing the Civil Rights Act. Rather than surveying the complete executive branch every year, commissioners instead focus on individual agencies’ civil rights practices. This year, the examination of EPA will begin with its coal ash disposal policies, though the commission says its initial hearing will also consider broader issues. Continue Reading

Senate Passes Legislation to Reform the Toxic Substances Control Act

On December 17, 2015, the United States Senate passed a bill by voice vote that updates the Toxic Substances Control Act (TSCA) of 1976.  The bipartisan supported legislation would implement major changes to TSCA, which regulates the manufacturing and sale of chemicals.

TSCA requires the Environmental Protection Agency (EPA) to regulate new and existing chemical substances in commerce that present an “unreasonable risk of injury to health or the environment.”  Continue Reading

U.S. Supreme Court to Decide Split on Whether a U.S. Army Corps Wetland Jurisdictional Determination is a Final Agency Action

On December 11, 2015, the U.S. Supreme Court granted certiorari to determine whether a jurisdictional determination approved by the U.S. Army Corps of Engineers (Corps) is a final agency action ripe for judicial review.  The decision will resolve a circuit split between the Eighth and Fifth Circuits. In U.S. Army Corps of Eng’rs v. Hawkes Co. Inc. et al., the Eighth Circuit ruled in favor of the petitioner property owners and determined that courts have jurisdiction to review Corps’ jurisdictional determinations (JDs) about whether a body of water is subject to its authority under the Clean Water Act (CWA). Case No. 15-290, review granted 12/11/15. Continue Reading