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

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

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

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

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

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

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

On May 22, 2020, the Environmental Protection Agency (EPA) Administrator signed a proposed rule entitled EPA Guidance; Administrative Procedures for Issuance and Public Petitions” that provides guidance and procedures for regulatory documents issued by the agency. The proposed rule purports to address concerns from the regulatory community that guidance documents were sometimes used to modify legal obligations which should only be imposed by statute or formal regulations. Continue Reading EPA Issues Proposed Rule Intended to Increase Transparency and Public Participation Related to Agency Guidance Documents

With parts of the Midwest setting records for wet weather this month, many eyes have turned toward the shorelines of the Great Lakes, which are experiencing an extended period of near-record high water levels. High water has wreaked havoc on public and private shorelines alike, eroding beaches, damaging seawalls, and threatening buildings. For many property owners, installation or repair of infrastructure such as breakwaters or bulkheads may be an attractive solution to limit future losses. But owners and their contractors must be careful to comply with state and federal laws that require permits for construction that impacts a navigable waterway. Continue Reading Without Careful Permitting, Erosion Control Projects Can Lead to a Flood of Legal Headaches

The EPA’s controversial science adviser policy has suffered two more defeats following the recent Union of Concerned Scientists v. Wheeler decision, making three straight losses in court for the Trump Administration’s policy limiting scientist participation in U.S. Environmental Protection Agency advisory boards. Continue Reading Three Strikes and the EPA’s Scientist Advisory Committees Directive May Be Out