Last week, the U.S. Environmental Protection Agency (EPA) completed its reconsideration of a January 2009 final action on “project aggregation.” Project aggregation is the concept that addresses when to combine nominally separate physical or operational changes at a stationary source to determine whether the changes trigger New Source Review (NSR) permitting requirements under the Clean Air Act (CAA). The 2009 final action (74 FR 2376) (the “2009 Aggregation Action”) sets forth the EPA’s desired interpretation and policy concerning when to aggregate such activities into a single project. The EPA has submitted the final action reconsidering the 2009 Aggregation Action for publication in the Federal Register (the “2018 Reconsideration”). After the 2018 Reconsideration is published, the 2009 Aggregation Action will go into effect Continue Reading EPA Completes Reconsideration of “Project Aggregation” Final Action

Late last week, the Supreme Court lifted the stay on Juliana v. United States, a closely watched federal case that could create an unprecedented link between the government’s environmental policy and constitutional rights, if it proceeds to trial.

Continue Reading Novel Litigation Strategies Also on Trial in Kids’ Climate Suit

Twenty-two months into the Trump Administration and a trend has become abundantly clear: courts are profoundly skeptical of the Trump Administration’s use of executive orders to undo or undercut regulations. Federal rulemakings are serious business for courts and regulated industries, which is why we have chronicled the Trump Administration’s regulatory reform efforts, including proposals to undo rules implemented by previous administrations.

Continue Reading Three Administrative Process Pointers from Department of Education Decision

In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property. Continue Reading Property Owners and Developers Beware: Third Circuit Holds Chemical Company Liable for Pre-Acquisition Cleanup Costs

Much has been written about the problem of the stagnating electricity market due to a combination of falling demand, widespread energy efficiency initiatives, lower electricity costs and aging infrastructure.

This issue has created a situation in which both power generators and utilities are unable to effectively plan for the future. Some utilities have even asked the federal government to approve rate payer-funded bailouts for specific power plants.

Continue Reading Vehicle Emissions Rollback Shouldn’t Stop Utilities From Investing in Electric Vehicles

Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018. Continue Reading New California Prop 65 Warning Requirements: What Businesses Should Consider Now

Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).

Continue Reading District Court Issues Injunction on President Trump’s “Suspension Order” of the WOTUS Definition

The EPA kicked off the week with the proposed Affordable Clean Energy (ACE) rule, which is meant to replace the Clean Power Plan (CPP). As expected and foreshadowed by its proposed changes to the legal rationale underpinning the CPP, the EPA will regulate only source emissions, not sector-wide emission reduction activities. The EPA claims this “best system of emissions reduction” is consistent with the Clean Air Act Section 111(d) authority and is both technically feasible and appropriate for coal-fired power plants.

Continue Reading Affordable Clean Energy Rule Proposed to Replace Clean Power Plan

Continuing reductions in environmental regulations across the power industry may seem like a good time for the C-suite to direct energy and attention towards other key priorities, but there is another force steadily working to tug reform back over the line — highly organized and increasingly strategic NGOs. Because deregulation is antithetical to their policy preferences, environmental groups routinely argue that federal agencies violate federal statutory laws, and power plant operations and infrastructure get caught in the crossfire.

Continue Reading Environmental Regulatory Rollbacks Are No Time for Utilities to Relax

Administrative deference is a fundamental tenet of environmental law. A recent decision in Los Angeles Waterkeeper v. Pruitt, however, provides an important reminder that agency deference is bound by the four corners of the underlying statute. In this case, a district judge in the Central District of California awarded judgment to two environmental NGOs by compelling the EPA to exercise powers granted under the Clean Water Act’s residual designation authority (RDA), precluding the EPA from considering other factors not prescribed by the statute.

The decision is interesting because the Clean Water Act (CWA) RDA is something of a regulatory backwater, and it highlights an important practice-pointer going forward, which is that addressing explicit factors set forth in a statute matter more than broader agency policy preferences. Continue Reading NGOs Win Recent Challenge on Permits for Industrial Facilities when EPA Overlooks Factors in the CWA Statute