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Energy and Environment Monitor

Environmental Litigation

The Murky "Waters of the United States" Just Got Muddier

          When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important.  What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported.

          Defining the “waters of the United States”…

"Strangled by Process"

          The U.S. Court of Appeals for the Fourth Circuit decided a case involving the Mineral Leasing Act of 1920 (MLA), an event sufficiently unusual that it merited a reading of the case. The MLA is the federal statute that governs the leasing of federal minerals, normally coal and oil and gas, on the public lands that the Bureau of Land Management (BLM) administers, primarily in the Western U.S. The…

EPA Offices at Odds Over Response to FERC Greenhouse Gas Inquiry

          In December of 2017, FERC announced that it would review its policies on certification of natural gas pipeline projects.  In particular, it announced that it would review its 1999 Policy Statement on Certification of New Interstate Natural Gas Pipeline Facilities (available at https://www.ferc.gov/legal/maj-ord-reg/policy-statements.asp).  Then, on April 19, 2018, FERC initiated a “notice of…

EPA's SCIENTIFIC TRANSPARENCY RULE

Can’t We All Agree That Some Part of This is Good?         

           In April 2918, the U.S. Environmental Protection Agency (EPA) unveiled its proposed rule on "Strengthening Transparency in Regulatory Science."  As proposed, the rule would limit EPA’s ability to write regulations based upon data that is not made available to the public. 

           Hearings on the proposed rule were held on July 27, 2018.  Feelings were…

Federal Courts on both Coasts Reject Cities' Efforts to Hold Oil Industry Responsible for Damages Caused by Climate Change

"The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case." Judge William Alsup

          Last week, on July 19, 2018, the U.S. District Court for the Southern District of New York (Judge John F. Keenan) dismissed the City of New York’s action against BP, Chevron, Conoco-Phillips, Exxon Mobile and Royal Dutch Shell seeking to recover…

Oil & Gas Development Wins Significant Case in Third Circuit

   The U.S. Court of Appeals for the Third Circuit has just given oil and gas development in northeastern Pennsylvania a new boost with a decision issued on July 3.  It reversed a district court’s decision that the Delaware River Basin Commission may bar oil and gas drilling and the associated hydraulic fracturing within the Delaware River watershed under the guise of regulating a “project” that may…

U.S. Fish and Wildlife Service Sued in West Virginia for Failure to Designate "Critical Habitat" for Two Species of Crayfish

          On June 20, 2018, the Center for Biological Diversity sued the U.S. Fish and Wildlife Service (“USFWS”) in federal court in the Southern District of West Virginia, challenging the agency’s failure to designate “critical habitat” for the Big Sandy crayfish and the Guyandotte River crayfish under the Endangered Species Act. USFWS listed the Big Sandy crayfish as “threatened” and the Guyandotte…

EPA Proposes to Surrender Clean Water Act Veto Authority

EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…

REMINDER: APPEALS FROM CERTAIN DECISIONS OF ENVIRONMENTAL BOARDS MUST BE TAKEN DIRECTLY TO WEST VIRGINIA SUPREME COURT

As of March 6, 2018, certain decisions of the Air Quality Board (“AQB”), the Environmental Quality Board (“EQB”), and the Surface Mine Board (“SMB”) must be directly appealed to the West Virginia Supreme Court unless all parties consent to proceeding in Kanawha County Circuit Court. 

 

West Virginia Code §§ 22B-2-3 (governing appeals to the AQB), 22B-3-3 (appeals to the EQB), & 22B-4-3 (appeals to…

DOE to Order Procurement of Power from Coal and Nuclear Facilities for 2 Years to Prevent Immediate Shutdowns

Section 202(c) of the Federal Power Act [16 USC §824a(c)[1] allows the Department of Energy to determine that an emergency exists by reason of sudden increases in demand for electricity, a shortage of electric energy, of generation facility or of fuel; “or other causes.” After making that determination, DOE can require temporary connections with such generation as will best “meet the emergency…

EPA to Reject Claims of Maryland and Delaware that Upwind Power Plants Have Inadequate NOx Controls

          EPA has proposed to deny petitions from Delaware and Maryland that sought to force controls on power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia.  The petitions claimed that NOx emissions from coal-fired plants in these states were significantly contributing, or would contribute in the future, to ozone levels in Delaware and Maryland that exceed allowable ambient levels. 

 

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