Energy and Environment Monitor

Ninth Circuit Rules Berkeley Gas Ban is Preempted by Federal Law but Acknowledges Limited Scope of Ruling

May 10, 2023

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…

EPA PROPOSES TO CLOSE SIX COAL ASH FACILITIES

February 7, 2023

On April 17, 2015, the Environmental Protection Agency promulgated a rule establishing national minimum criteria for existing and new coal combustion residuals (CCR), landfills, and existing and new CCR surface impoundments.

The rule was challenged by both anti-coal groups and industry. In 2018, the D.C. Circuit Court addressed these challenges primarily in favor of the anti-coal groups in Utility…

SUPREME COURT ASKED TO WEIGH IN ON CWA “DILIGENT PROSECUTION” BAR IN ADMINISTRATIVE ENFORCEMENT CONTEXT

February 7, 2023

The United States Supreme Court is being asked by a South Carolina farm to clarify whether the Clean Water Act’s (“CWA”) diligent prosecution bar precludes a federal enforcement action related to its alleged failure to get stormwater permits required by law whether the state enforcement agency had already begun the process of administrative enforcement.

Dakota Finance LLC, dba Arabella Farm, (the…

Supreme Court Takes Away EPA’s Toys

July 7, 2022

“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).

Thus, a…

The Superfund Excise Tax Is Returning Soon for the Chemical Industry.

May 16, 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.  See https://www.irs.gov/…

Supreme Court Hears Argument on Scope of EPA’s Authority Over Power Plant Emissions

March 4, 2022

Introduction

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…

EPA Issues COVID-19 Guidance

March 27, 2020

On March 26, 2020, the United States Environmental Protection Agency (“EPA”) issued guidance on how the agency will address compliance and enforcement issues in light of COVID-19.

In its guidance, EPA acknowledges that illnesses, travel bans and social distancing may cause shortages in staffing that impact monitoring or compliance.   Accordingly, the EPA provides that it will, under specifically…

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

February 26, 2020

          The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020.  We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here.  The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water…

U.S. Fish and Wildlife Service Proposes Critical Habitat for Two Central Appalachian Crayfish

February 18, 2020

BACKGROUND

In 2016, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) listed the Guyandotte River crayfish as endangered and the Big Sandy crayfish as threatened.  An explanation of those decisions and a map of their range in West Virginia, Kentucky and southwest Virginia may be viewed here.  In 2018, the Center for Biological Diversity sued the USFWS to force the designation of critical…

Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” Ruling

January 8, 2020

      In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.”  We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company.[1]  The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants…

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

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…

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

November 7, 2019

The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).

In March 2019, a group of…