In recent years, the Public Utility Regulatory Policies Act (PURPA) “one mile” rule has come under increased scrutiny for favoring small power producers over utilities and consumers. The “one mile” rule, promulgated by the Federal Energy Regulatory Commission (FERC), is used to determine whether multiple facilities of a single power producer are part of the same “site” for the purpose of obtaining “qualifying facility” (QF) status under PURPA. Many utilities have argued that FERC’s application of the “one mile” rule has allowed small power producers to “game the system,” resulting in too many mandatory purchasing contracts and high energy costs being passed on to consumers. This concern is raised most frequently with wind farms, where turbines are located within relatively close proximity. Continue Reading House Subcommittee Prods FERC To Examine PURPA “One Mile” Rule
The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them. Continue Reading Ninth Circuit Issues Decision in Novel Clean Water Act Case
The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.
As 2017 comes to a close, the specifics of the Trump Administration’s agenda for energy regulatory reform in 2018 are beginning to take shape. To implement President Trump’s Executive Order on “Promoting Energy Independence and Economic Growth” (No. 13783), federal agencies solicited public comment and have now issued reports identifying their priorities for reform. These energy independence reports, as well as the Trump Administration’s broader agenda for regulatory reduction and reform, describe steps the administration can take—largely without congressional involvement—to reduce the compliance burden associated with environmental regulations and permit requirements. Continue Reading 2018 Energy Reform Priorities: Streamlining to Further Reduce Compliance Burden
Several departments have released the regulatory reform reports requested by the Trump Administration’s Executive Order 13783, which is intended to speed the progress of and lower the costs of infrastructure and energy projects.
Reports are in from the Environmental Protection Agency (EPA), Department of the Interior (DOI), Department of Energy (DOE), and Department of Commerce, and several themes are clear: Long project approval and lengthy permitting timelines must end. The executive branch must coordinate efforts among agencies. Departments must consider how their regulatory role impacts the national and local economies. Continue Reading Regulatory Reform: Where Are We Now?
Environmental regulatory reform under the Trump Administration presents an opportunity to reinvigorate the national conversation around the federal-state relationship. Continue Reading Charting the Federal-State Policy Blueprints of the Future
For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list. California’s Office of Environmental Health Hazard Assessment (OEHHA) wasted no time after the decision and added glyphosate to the list on July 7, 2017. Continue Reading No Delay for Proposition 65 Listing of Glyphosate
The U.S. Court of Appeals for the Fourth Circuit recently overturned a lower court’s order for the Environmental Protection Agency (EPA) to conduct a study of air pollution rules’ impact on jobs, and it has broad ramifications across industries.
The Fourth Circuit’s ruling in Murray Energy Corp. v. Adm’r EPA may impact the scope of citizen suits under the Clean Air Act (CAA) and other statutes, including environmental activism cases with the potential to expose companies to significant liabilities. In addition, the EPA’s future rulemaking is likely to continue to have significant implications for industry jobs. Continue Reading EPA Jobs Review Mandate Win May Have Sweeping Industry Impact
On April 19, 2017, the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the Federal Energy Regulatory Commission’s (FERC) implementation of Order No. 1000 with respect to ISO-New England (ISO-NE). The D.C. Circuit had previously upheld the legality of the order itself in 2014, and the Seventh Circuit upheld FERC’s implementation of Midcontinent Independent System Operator Inc.’s Order No. 1000 compliance plan in 2016. This week’s decision represents another success for FERC and its Order No. 1000 policy objectives. Continue Reading FERC Prevails Again in Order No. 1000 Appellate Proceedings
In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months, see here and here. Continue Reading Are We Facing the Decline of Chevron Deference and an Article III Renaissance?