On April 17, 2023, the Ninth Circuit Court of appeals reversed and remanded the district court’s decision in California Restaurant Association v. City of Berkeley, deciding that the City of Berkeley’s prohibition on natural gas infrastructure in new buildings was preempted by Section 6297(c) of the Energy Policy and Conservation Act (EPCA).[1] The Court determined that Congress intended the scope…
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ [b]ut it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d) [of the Clean Air Act].
- West Virginia v. EPA, 597 U.S. __ (June 30, 2022).
Chemical companies need to prepare for the return of an excise tax on chemicals produced or imported that hasn’t been in effect for nearly 30 years. In January 2022, the IRS published Notice 2021-66, related to the Infrastructure Investment and Jobs Act (“IIJA”), which revives the excise taxes imposed on certain chemicals—previously known as the Superfund Chemicals taxes. Seehttps://www.irs.gov/…
On Monday, February 28, 2022, the Supreme Court heard a challenge to EPA’s authority to regulate CO2 emissions from coal-fired power plants. The challenge was spearheaded by West Virginia’s Attorney General and his Solicitor General. If the Court rules on the merits, it will determine whether EPA’s authority to limit CO2 emissions from coal-fired power plants is limited to regulating…
West Virginia recently supported the solar industry by passing H.B. 3310 into law. This law exempts the Public Service Commission from jurisdiction over power rates for retail customers entering into a power purchase agreement (PPA) for on-site solar facilities under certain circumstances. This would allow more free enterprise for solar companies and purportedly increase the consumption of solar…
In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest. SeeU.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast…
The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act. See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019). There, both a trial and appeals court have ruled that a state’s waiver of its…
We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…
In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…
Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June…
The EPA issued a new guidance document on June 7th instructing other federal agencies and the states how they should interpret and implement §401 of the Clean Water Act (“CWA”). Individually, it is a modest step taken to fulfill an executive order issued earlier this year and will be followed by a new rule updated existing EPA’s §401 regulations. Viewed in context, it is another brick removed…
