On January 19, the D.C. Circuit vacated the Affordable Clean Energy Rule (ACE), a rule intended to reduce greenhouse gas (GHG) emissions emitted from power plants. Am. Lung Ass’n et al. v. EPA, No. 19-1140. The lengthy opinion touches on numerous issues raised over the last 10 years as EPA has bumped toward the goal of regulating greenhouse gases. The opinion appears to be grounded in EPA’s own assertions, made in this and other rulemakings, that climate change is a grave threat to society and power plants are a significant source of GHGs. Continue Reading Affordable Clean Energy Rule Vacated

Liberty to invest in new opportunity

Over the past several years, Environmental, Social and Governance (ESG) initiatives have gained popularity among investors, but have gained less traction in federal law. ESG are a set of criteria that investors use to evaluate the environmental and societal impacts of a business. Some European countries require that companies report their ESG metrics, but ESG reporting in the United States has generally been voluntary. There are some indications that a Biden administration — especially coupled with a democratic congress — may seek to amplify ESG reporting in the U.S. As an early indication of such action, the new administration is expected to view ESG differently than the Trump administration. Continue Reading ESG in the First 100 Days?

Regulated industries pay close attention to how regulators use scientific data, because the stakes are high. While scientific knowledge may evolve rapidly, regulatory processes — and the business decisions that rely on them — tend to proceed more deliberately. As a result, the regulated community has long pushed the U.S. Environmental Protection Agency (EPA) to base its decisions only on scientific information that is present in the public domain and thus subject to greater scrutiny. Continue Reading EPA Releases Late-Term “Secret Science” Rule

Last month, we wrote about “midnight” regulations issued by the Trump Administration and a process available for Congress to respond. Since then, the Trump Administration took an important step towards issuing one such regulation, regarding activities that “incidentally” harm protected migratory birds. If finalized, this rule would be the culmination of a years-long effort to loosen the Migratory Bird Treaty Act’s (MBTA) restrictions, which could aid energy and infrastructure developers and operators.

Continue Reading Lame-Duck Rules Could Loosen Migratory Bird Restrictions

United States Presidential Election 2020

As specific policies, legislative priorities and cabinet nominations are revealed in the coming weeks, manufacturers and energy companies are beginning to consider what a Biden Administration will mean for their business. However, until the Georgia runoff elections are completed on January 5, 2021, the balance of power in the U.S. Senate will remain unclear. As a result, industry must also continue to plan for the possibility that a Democrat-controlled Congress could employ the Congressional Review Act (CRA) to quickly reverse regulations finalized in the waning months of the Trump Administration. Continue Reading Election 2020: Congressional Review Act Could Allow for Quick Regulatory Reversals

Judge Gavel on a black wooden background.

Citizen suits can be complicated when states engage in regulatory actions after a private party files a complaint. The major federal environmental statutes are largely intended to be implemented by state and federal regulators, and suits by private parties including non-governmental organizations are intended to supplement — and not supplant — the regulators’ role. Continue Reading Court Sets Citizen Suit Case for Trial Even Though State Regulators Are Evaluating Similar Issues

Power plant, photovoltaic, wind energy

On August 31, 2020, the United States Environmental Protection Agency (EPA) issued the pre-publication notice of a final rule that revises two aspects of the technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating industry set by the Obama Administration in 2015. The final rule takes effect 60 days after EPA publishes it in the Federal Register. Its revisions apply to two waste streams, flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water, and may afford certain power plants increased flexibility to achieve compliance. Continue Reading EPA Finalizes Revised Effluent Limitation Guidelines for Power Plants

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In a decision that affirmed FERC and is a supportive development for the energy storage industry, on July 10, 2020, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Energy Regulatory Commission‘s landmark rule, Order No. 841. The decision confirmed FERC’s position in Order No. 841 that it could preempt state interference with energy storage resources trying to reach the wholesale market and rejected arguments that the rule unlawfully intrudes upon state electricity authority. Continue Reading D.C. Court Upholds FERC Energy Storage Rule and FERC Dismisses Petition to Declare State Net Metering Programs FERC-Jurisdictional

New York goes green

Have a large site ready for renewable energy development in New York? The state is looking for you.

On July 22, 2020, New York Governor Andrew Cuomo announced a search for possible sites, requesting information (RFI) from local communities and private parties about prospective sites. Continue Reading New York Issues RFI for Build-Ready Sites to Host Large-Scale Renewable Energy Developments

Gavel In Court Room

The viability of Nationwide Permit (NWP) 12 – used to authorize certain actions during utility line construction – is uncertain. After a Montana judge vacated and enjoined the use of the permit nationwide for new oil and gas pipelines,[1] the U.S. Army Corps of Engineers (Corps) immediately appealed to the Ninth Circuit. In its May 22 brief on the motion to stay the district court’s order imposing the nationwide injunction, the Corps argued that the injunction violated due process and that the order lacked clarity. The Ninth Circuit refused to stay the matter, rejecting these arguments in its most recent order[2] because the Corps had not shown “sufficient likelihood of success on the merits” and “probability of irreparable harm.” Continue Reading Nationwide Permit 12: The Uncertainty Continues