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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

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

Missouri River floodplain

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

Environmental Protection Agency Building in Washington DC

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

United States Supreme Court Building, Washington, DC

A landmark Clean Water Act (CWA) decision by the U.S. Supreme Court presents an entirely new test to use to determine if a discharge requires federal permitting. Under the April 23 decision in Hawaii Wildlife Fund v. County of Maui, a National Pollutant Discharge Elimination System (NPDES) permit is required for groundwater discharges to “navigable waters” when the groundwater discharge is the “functional equivalent of a direct discharge” from a point source. Continue Reading Supreme Court Applies Entirely New Test to Determine Clean Water Act Applicability in Highly Watched Case

Washington State Capitol Building

The U.S. Supreme Court recently decided Atlantic Richfield v. Christian, a Superfund case involving landowners who sought to use state law claims to compel Atlantic Richfield, the successor by merger to a copper smelting company, to perform a more extensive cleanup than federal regulators had required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While formally remanding the landowners’ claims to state court for further evaluation because the claims require the federal EPA’s permission to meaningfully proceed, the decision emphasizes the EPA’s continued primacy in remedial decision making. The decision should give a measure of comfort to parties performing federally supervised cleanups. But parties still may be vulnerable to state court claims by landowners that convince the EPA that the remedies they request do not threaten overall cleanups. Continue Reading Three Takeaways from Atlantic Richfield Supreme Court Decision Emphasizing EPA Primacy in Remedial Decision Making

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Environmental cleanup obligations can be among the most expensive liabilities and complex logistical challenges companies face. While some cleanup projects can be relatively minor in scope and occur in industrial areas far removed from where people live, other cleanup projects are essentially massive construction projects occurring in densely populated residential areas. In the best of times, these projects can involve large numbers of workers, vast amounts of equipment ranging from drilling rigs to barges, and take place over decades.  COVID-19 can pose major hurdles to such complicated work. Continue Reading Five Key Highlights of EPA’s COVID-19 Guidance for Cleanup Sites

Historically, the U.S. Environmental Protection Agency has relied upon advisory committees comprising members from the scientific community to advise the EPA on the development and implementation of regulations. The Trump Administration has taken measures in recent years to constrain the authority and composition of these committees. But the First Circuit’s recent decision in Union of Concerned Scientists v. Wheeler signals a limit on these measures – ruling in favor of a challenge to the administration’s attempt to bar scientists who had received EPA grants from being members of advisory committees. Continue Reading First Circuit Decision Signals Vulnerability of EPA Directive Limiting Scientist Membership in Advisory Committees