We have discussed deference in past posts and, this past month, the Supreme Court granted certiorari in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, Case No. 17-71. The case may focus the Court’s attention on deference and other issues. Specifically, the case addresses whether the U.S. Fish & Wildlife Service’s (FWS) interpretation of the Endangered Species Act (ESA) was appropriate. Continue Reading On Dusky Gopher Frogs and Chevron Deference: A Report on a Recent U.S. Supreme Court Certiorari Grant

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 environmental world has waited with bated breath for jurisdictional certainty in defining regulated waters under the federal Clean Water Act (CWA). While we wait, two interesting CWA procedural decisions may play into how the substantive issue gets to the U.S. Supreme Court.

Continue Reading Three Lessons to Consider in Choosing Your Court for CWA Cases

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.

Continue Reading EPA Revises Guidance Allowing Reclassification of Major Sources of Hazardous Air Pollutants as Area Sources Under the Clean Air Act

The arrival of a new year marks the beginning of the annual proxy season. And this year, shareholders can expect to see a lot more climate change disclosure in 2017 corporate financials.

Companies now have guidelines to help do that. In June 2017, the Financial Stability Board’s (FSB) Task Force on Climate-related Financial Disclosures (TCFD) issued voluntary disclosure recommendations, so companies can provide shareholders with information about the business risks, opportunities, and impacts posed by climate change. The TCFD is an international coalition of business, government, and financial leaders tasked with developing voluntary disclosure recommendations to help companies identify, report, and protect against climate risks. The voluntary recommendations are designed to “foster shareholder engagement and broader use of climate-related financial disclosures, thus promoting a more informed understanding of climate-related risks and opportunities by investors and others.”  Id. at iv.  The TCFD emphasizes that disclosure should be made according to each jurisdiction’s requirements and that the guidelines do not replace existing law. Continue Reading 2018 Rising Trends in Corporate Climate Disclosures

Last month, the U.S. District Court for the Eastern District of Kentucky sided with a utility and dismissed a citizen suit based on the Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). The opinion contradicts other recent federal court decisions analyzing the applicability of the CWA to coal ash discharges through groundwater.

Continue Reading Kentucky Decision Has Implications for Utilities Fighting Citizen Suits

For decades, the extent of regulatory authority under the Clean Water Act (CWA) has been the subject of a great deal of litigation. Typically, the litigation involves a challenge to the authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) to require a CWA permit, by private parties – chiefly real estate developers and industry groups – seeking to constrain that authority and limit permitting requirements. A November 28, 2017 decision by the Ninth Circuit in the case of United States v. Robertson is the latest – but by no means the last – decision in a long line of cases wrangling over the definition of “waters of the United States” under the CWA. Continue Reading Ninth Circuit Decision Means Flood of Litigation Over “Waters of the U.S.” Definition Will Continue Despite Trump Administration Efforts

Last Thursday, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) proposed delaying implementation of the rule defining the term “Waters of the U.S.” (WOTUS) for two years. This is one of many moving pieces involving the WOTUS rule at this time, and another step by the agencies under the Trump administration towards maintaining the status quo and ensuring the 2015 rule is not implemented. Continue Reading The EPA and Army Propose to Delay WOTUS Rule until 2020

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