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

House Authorizes Smaller WRDA Bill, Future of Senate’s Coal Ash Provisions Unclear

This is an update to the September 23 article, Senate Opens the Tap on Water Infrastructure Spending and Creates New Coal Ash Permit Program.

On Wednesday, September 28, the House passed the Water Resources Development Act with a vote of 399-25, H.R. 5303. The Senate voted 95-3 in favor of its own version of the bill, S. 2848, on September 15. The headline feature of both bills is funding for cities dealing with lead emergencies like the one that affected Flint, Michigan, but both also contain provisions that are important to businesses in sectors including construction, transportation, and electric utilities. Though each chamber has now passed a version of the bill, important differences between the two will need to be resolved before it is signed by the President. Continue Reading

FWS Proposes New Endangered Species Listing: Should Farmers “Bee” Worried?

On Thursday, September 22, 2016, the Fish and Wildlife Service proposed a new rule to list the rusty patched bumble bee as “endangered” under the Endangered Species Act.[1] The rule would likely mean new restrictions for farmers and other landowners in parts of the 13 states where the bees are currently thought to exist. Specifically, it would prohibit harming or harassing the bees, which could limit the use of certain pesticides and herbicides. These restrictions would be imposed despite uncertain science about current bee populations and threats facing the species. Interested parties now have until November 21, 2016 to comment on the proposed rule and underlying scientific data. Continue Reading

Clean Power Plan has its Day in Court

The Clean Power Plan, the Obama Administration’s attempt to reduce carbon dioxide emissions from existing power plants, had its day in court on September 27. What a day it was!

Ten judges of the D.C. Circuit Court of Appeals heard arguments addressing the validity of the EPA’s Clean Power Plan in this rare “once in a lifetime” case. (Judge Merrick Garland, a nominee to the Supreme Court, did not hear the case.) A dozen lawyers battled for nearly eight hours — far longer than the three hours the court had allotted — on issues ranging from the Plan’s constitutionality, obscure principles of statutory interpretation, congressional intent, states’ rights, and administrative procedure. Continue Reading

Senate Opens the Tap on Water Infrastructure Spending and Creates New Coal Ash Permit Program

On Thursday, September 15, the Senate voted 95-3 in favor of the Water Resources Development Act of 2016, S. 2848 (WRDA). The headline feature of the bill is funding for cities dealing with lead emergencies like the one that affected Flint, Michigan, but the bill also contains provisions that are important to businesses in sectors including construction, transportation, and electric utilities. It is unclear whether the House will consider the bill before the November election. Continue Reading

Fracking Debate Moves into Insurance Realm

The gloves are off in a lawsuit in the Southern District of New York where an insurer and an oil and gas company disagree about whether the company’s insurance policy covers claims that fracking causes earthquakes. On June 27, 2016, insurer Lloyd’s sued New Dominion, arguing that the Lloyd’s pollution liability policies do not provide coverage because fracking is not a “pollution condition.” (See: Complaint for Declaratory Relief.) The Lloyd’s lawsuit relates to five other Oklahoma lawsuits addressing the same issue. (See: Complaints in Oklahoma lawsuits.)

With this lawsuit, the fracking debate moves into a new arena: insurance coverage disputes. Continue Reading

EPA Updates Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

On September 7, 2016, the United States Environmental Protection Agency (EPA) issued a final rule updating the Cross-State Air Pollution Rule (CSAPR) ozone season trading program.  The rule promulgates more stringent ozone season NOx budgets in several states.  CSAPR was promulgated to implement the “good neighbor” provision of the Clean Air Act, which requires states to address the transport of pollution across state lines. Continue Reading

EPA Denies Petitions to Review Startup and Shutdown Issues under MATS and Utility NSPS

On August 5, 2016, the Environmental Protection Agency (EPA) denied two petitions by environmental and industry groups to reconsider startup and shutdown issues under the Mercury and Air Toxics Standards (MATS) rule and the Utility New Source Performance Standards (NSPS). These regulations, finalized in February 2012, impose operational requirements to minimize emissions during periods of start-up and shutdown in lieu of numeric limits. Continue Reading

EPA Must Regulate Airplane Greenhouse Gas Emissions

As we wrote about previously, in February 2016 the International Civil Aviation Organization (ICAO) proposed international standards to limit the emissions of greenhouse gas (GHG) emissions from airplane engines.  Last week, the EPA finalized the first step to create domestic emissions standards for airplanes when it officially found that GHG emissions from certain types of aircraft engines contribute to climate change.  Now that EPA has issued this determination — known as an “Endangerment Finding” — it is required to regulate these emissions under the Clean Air Act.  EPA may propose new domestic emissions rules before the end of President Obama’s term and it has announced the limits will be at least as stringent as the international standards ICAO proposed in February. Continue Reading

FERC Issues Orders Concerning NERC Critical Infrastructure Protection Reliability Standards

On June 21, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued three orders related to the North American Electric Reliability Corporation’s (NERC) critical infrastructure protection reliability standards (CIP reliability standards). The Commission issued a final rule directing NERC to develop a new or modified reliability standard, an Order Denying Rehearing and a Notice of Inquiry. Continue Reading