Environmental

    • 18 Aug 2015

    Waters of the United States – D.C. Circuit Home Builders II Opinion

    Persistence is a good trait in the arena of appellate advocacy, but sometimes it is difficult to know when to keep pushing or when to stop. It may be that a signal was sent in the concurrence written by Senior Circuit Judge Silberman, with whom Senior Circuit Judge Sentelle joined, to keep pushing. Judge Silberman wrote, “And Home Builders should be able to easily establish standing upon the government’s issuance...
    • 6 Aug 2015

    Supreme Court - EPA Must Consider Costs before Regulating Mercury Emissions from Power Plants

    On June 29, 2015, the U.S. Supreme Court ruled in Michigan v. EPA, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], that the U.S. Environmental Protection Agency (EPA) failed to properly consider compliance costs before promulgating the Mercury and Air Toxics Standards (MATS) rule for fossil fuel-fired power plants under Section 112 of the Clean Air Act (CAA). The Supreme Court’s...
    • 4 Aug 2015

    EPA Report Finds No Evidence That Hydraulic Fracturing Causes Widespread Impacts On Drinking Water

    By Robert J. Alessi and Jeffrey D. Kuhn This client alert is part of an ongoing series by DLA Piper attorneys on the legal, regulatory and policy issues related to hydraulic fracturing and shale gas production in the US and internationally. The US Environmental Protection Agency has issued a long-awaited draft report on hydraulic fracturing (or fracking) which concluded that there is no evidence that fracking...
    • 3 Aug 2015

    How the Supreme Court Just Delayed the Clean Power Plan

    By Tricia Caliguire The Supreme Court’s decision in Michigan v. EPA , [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], holding that the Environmental Protection Agency should have considered costs when making the decision to regulate mercury emissions from power plants (the "MATS Rule") may have put the brakes on the late-summer release of the final Clean...
    • 3 Aug 2015

    U.S. Supreme Court Invalidates EPA’s Regulation of Mercury from Power Plants

    On June 29, 2015, the U.S. Supreme Court reversed, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the U.S. Court of Appeals for the D.C. Circuit, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], and invalidated U.S. EPA's 2012 regulation of mercury and other hazardous air pollutant ("HAP") emissions from coal and oil-fired...
    • 3 Aug 2015

    OMB Begins Review of EPA Proposals to Curb Methane Emissions, Define Major Source

    By Meredith Odato Graham In late June the U.S. Environmental Protection Agency (EPA) sent a highly-anticipated proposed rule to the White House Office of Management and Budget (OMB) for interagency review that would address methane emissions in the oil and natural gas sector. Earlier this year, EPA announced its plan to initiate such a rulemaking as part of its methane reduction strategy . A second proposed rule was...
    • 31 Jul 2015

    "Capacious" Term Dooms MATS Rule - Does It Say Anything About the Clean Power Plan?

    By J. Wylie Donald The Energy Information Agency predicted the retirement of up to 60 gigawatts of coal-fired electricity generation by 2020. A significant contributor to that evolution was the Mercury and Air Toxics Standard or MATS Rule. Until now that is, because a 5-4 majority on the Supreme Court concluded in Michigan v. EPA that EPA’s failure to consider cost in deciding to regulate power plant emissions...
    • 30 Jul 2015

    Pope Says No to Cap and Trade

    By Tricia Caliguire "Pope Francis Stands Up to Climate Deniers," or so says the editorial board of the Newark Star Ledger . Yes, but the headline could have read, "Pope says No to Cap and Trade." In his ENCYCLICAL LETTER LAUDATO SI’ OF THE HOLY FATHER FRANCIS ON CARE FOR OUR COMMON HOME , Pope Francis calls for an honest discussion on environmental issues that divide us, both politically...
    • 29 Jul 2015

    There's Gold in Them Thar Coal Plants - You Just Have to Know How to Look For It

    By J. Wylie Donald Last Tuesday night saw a few of us enjoying the charms of Virginia Beach as we recovered from a long day of coal plant demolition. (Lawyers in hard hats. Run from that.) Well, not exactly. We were attending a conference run by EUCI: Plant Retirement: Learning from Experience. EUCI did a nice job gathering experts from the contracting, consulting and plant owner communities and providing a deep...
    • 29 Jul 2015

    EPA Proposes Endangerment and Cause or Contribute Finding for Aircraft Emissions

    In a rule signed on June 10, 2015, EPA proposed to find that greenhouse gas (GHG) emissions from engines used in certain types of aircraft contribute to air pollution that endangers health and welfare under section 231(a) of the Clean Air Act. Further, anticipating that the International Civil Aviation Organization (ICAO) will adopt a final CO 2 emissions standard for aircraft in February 2016, EPA also issued an Advance...
    • 22 Jul 2015

    Final Version of Controversial Clean Water Rule Announced: Does EPA Have Jurisdiction Over Your Ditch?

    On May 29, 2015, the Obama administration released the final version of its highly controversial Clean Water Rule. President Obama declared that the new rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.” Republicans do not agree with the President’s...
    • 22 Jul 2015

    FERC’s Reaction to CEQ’s Greenhouse Gas Guidance: For Now, Business as Usual

    On June 23, 2015, the Federal Energy Regulatory Commission issued an Order Denying Rehearing, [subscribers can access an enhanced version of this order: lexis.com | Lexis Advance ], of its earlier April 6, 2015 order, [subscribers can access an enhanced version of this order: lexis.com | Lexis Advance ], authorizing Sabine Pass Liquefaction, LLC to construct and operate natural gas liquefaction export facilities. The...
    • 22 Jul 2015

    EPA Issues SIP Call to Eliminate SSM Defense

    By Channing J. Martin EPA has issued a final rule that requires 36 states to revise their State Implementation Plans to eliminate a well-known and often-used Clean Air Act defense for excess emissions. While specific elements of the defense differ from state-to-state, the defense generally offers protection from enforcement when manufacturers and other sources exceed emission limits during periods of startup, shutdown...
    • 21 Jul 2015

    Back to the Future: EIA’s Analysis of EPA’s Clean Power Plan Concludes that Power Sector CO2 Emissions May Drop to 1980s Levels

    In June 2014, EPA issued its proposed Clean Power Plan to regulate CO2 emissions from existing power plants under section 111(d) of the Clean Air Act, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance ]. The Clean Power Plan proposes to limit carbon emissions from existing fossil fuel-fired electric generating units, including steam generating, integrated gasification combined cycle...
    • 21 Jul 2015

    Clean Water Act Jurisdiction Under the Newly Issued Clean Water Rule

    More than 40 years after Congress passed the landmark Clean Water Act, the jurisdictional reach of that statute remains a contentious legal and political issue. By prohibiting the discharge of pollutants to “navigable waters” without a permit, the Act expressly limits its protections to “navigable waters.” The statute defines “navigable waters” as “waters of the United States...
    • 21 Jul 2015

    EPA and Corps Define “Waters of The United States”

    By: Channing J. Martin EPA and the Army Corps of Engineers have promulgated a final rule defining the scope of federal jurisdiction over wetlands and other “waters of the United States” under the Clean Water Act. Dubbed the “Clean Water Rule” by EPA, the 297-page document was issued to clear up the regulatory uncertainty over the scope of federal jurisdiction resulting from the U.S. Supreme...
    • 16 Jul 2015

    EPA Proposes to Redesignate Charlotte Area to Attainment for Ozone Standard

    By Ryan W. Trail On May 21, 2015, EPA proposed to approve the State of North Carolina’s request to redesignate its portion of the bi-state, Charlotte-Rock Hill 8-hour ozone nonattainment area (the “Area”), to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (“NAAQS”)(the “Proposed Rule”). A similar request was made in April by South Carolina for...
    • 15 Jul 2015

    New Jersey Assembly Unanimously Passes Bill Broadly Allocating Liability and Damages for Hazardous Substance Discharges from Offshore Drilling Platforms

    The New Jersey Assembly has unanimously passed a bill, A4258, [subscribers can access an enhanced version of this bill: lexis.com | Lexis Advance ], which is notably broad in its language on allocating liability and damages for releases of hazardous substances from offshore drilling platforms. The bill would supplement N.J.S.A. 58:10-23.11, the New Jersey Spill Compensation and Control Act, [subscribers can access an...
    • 14 Jul 2015

    EPA Lacks Authority to Regulate Plastic Microbeads in Water

    By E. Lynn Grayson Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s...
    • 13 Jul 2015

    Clean Water Rule Opens Litigation Floodgates

    By A. Keith "Kip" McAlister, Jr. With much fanfare, EPA and the Army Corps of Engineers (“Corps”) recently issued a final rule clarifying which bodies of water are “waters of the United States” protected under the Clean Water Act (“CWA”). Coming in the wake of the Supreme Court’s confusing decision in Rapanos, [subscribers can access an enhanced version of this...
    • 13 Jul 2015

    Democratic Senators Introduce Carbon Tax Bill

    On Wednesday, June 10, two Democratic Senators (Sheldon Whitehouse of Rhode Island and Brian Schatz of Hawaii) introduced a bill that would impose a carbon tax of $45 per ton of carbon emissions. For other greenhouse gases, the bill imposes a carbon dioxide equivalent fee. The sponsors claim that the bill would cut carbon emissions at least 40% by 2025 (compared to 2005 base levels) and raise $2 trillion in revenue over...
    • 13 Jul 2015

    Supreme Court Ruling on EPA Mercury Rule: Utilities Wins the Battle, But Lose the War

    By Jessica J.O. King The Clean Air Act requires EPA to regulate emissions of hazardous air pollutants from coal-fired power plants if the agency determines that such “regulation is appropriate and necessary” after studying the hazards the emissions pose to human health. EPA conducted the study and concluded that regulation was necessary. The agency refused to consider costs in reaching its decision....
    • 10 Jul 2015

    U.S. EPA and the Army Corps Finalize Much-Anticipated “Waters of the United States” Definition

    On May 27, 2015, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (Corps) issued a highly anticipated revision to the federal definition of “waters of the United States.” By expanding the application of various regulations under multiple federal environmental laws—including the Clean Water Act (CWA) and Comprehensive Environmental Response, Compensation...
    • 9 Jul 2015

    Creative Sentence For Ontario Concrete Company

    A Sudbury ready mix concrete company, Rainbow Concrete Industries Ltd ., pleaded guilty to one count under s. 30 of the Ontario Water Resources Act , for discharging concrete waste water into a Sudbury creek, and received a creative sentence plus a fine. This is good news. Creative sentences, i.e. looking for remedial action, not just a fine, were common and effective tools when I was an Ontario Ministry of the Environment...
    • 9 Jul 2015

    EU Seeks to Balance Emissions Controls and Global Competitiveness

    The European Union has placed a growing emphasis on climate change policies in recent years, and the week of June 15–19 marked the 10 th annual European Union Sustainable Energy Week focusing on “sustainable mobility,” decarbonisation, and other energy topics. Earlier this year, the European Commission released its Energy Union proposal for the Paris Protocol, calling on an agreement and legally binding...