Jackson Kelly PLLC

Energy and Environment Monitor

The Green New Deal Meets Physics

A new report by the Manhattan Institute explains that while greater efficiencies can be gained by electric generators using solar or wind energy, technology will soon bump up against hard stops in those efforts.  See The “New Energy Economy”: An Exercise in Magical Thinking (March 26, 2019).  https://www.manhattan-institute.org/energy-environment  For example, the so-called Betz limit will prevent…

Courts Reject Challenges to Directive Prohibiting EPA Grant Recipients from Participation on Federal Advisory Committees

          EPA’s Science Advisory Board (“SAB”) is one of eight statutorily established Federal Advisory Committees established under the Federal Advisory Committee Act to provide guidance on various environmental and health issues to EPA and other federal agencies.[1]  See 5 U.S.C. App. There are 14 others established by the President or agency heads. Throughout the Obama administration, industry…

House Delegates Introduce Environmental Constitutional Amendment

          On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.”  The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:

 

ARTICLE III. BILL OF RIGHTS.

§23. Natural Resources and the Public Estate.

The people have a right to…

A Christmas Present for All Who Use the Land

          The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11.  The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law.  The new definition will “encompass relatively permanent flowing and…

District Court Pauses Kids' Climate Suit for Interlocutory Appeal

On November 21, 2018, the United States District Court for the District of Oregon stayed a climate change suit in order to allow for an interlocutory appeal to the Ninth Circuit Court of Appeals.   An interlocutory appeal is an appeal of a specific ruling by a trial court that is made before the trial itself has actually concluded.  The District Court’s order concerns a suit filed against the…

The Promise and Perils of Clean Water Act Litigation

            On November 14th, a federal district court dismissed a lawsuit filed by environmental groups against the owners of the Vermillion power plant, a retired coal-fired facility on the banks of the Middle Fork in Vermillion County, Illinois.  Metals from coal ash were leaching from three unlined ponds into groundwater that flows to the Middle Fork, which happens to be both a federally and state…

DO I HAVE A POINT SOURCE?

The Answer Depends on the Jurisdiction

 

Let’s say you have an unlined pond.  It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit.  But, let’s assume that pollutants in the pond percolate into groundwater.  And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream. 

 

Image result for fly ash pond

 

Does your pond…

U.S. Supreme Court Allows Kids' Climate Trial to Proceed

We have written before about this case where a group of children have sued the United States Government for its failure to protect them from the effects of climate change.  October 30, 2018.  In prior rulings, a federal district court judge in Oregon has rebuffed efforts by the United States to dismiss the case on the grounds that it presents non-justiciable “political” questions rather than…

U.S. Supreme Court Stays Kids' Climate Suit

On October 19, 2018, the United State Supreme Court temporarily stayed a suit filed against the President and various executive agencies brought by 21 minors, an organization known as Earth Guardians, and “future generations” by and through their self-appointed guardian, Dr. James Hansen, who is a well-known climate scientist and climate change activist.  See In Re United States of America, et…

EPA Proposes to Reconsider New Source Performance Standards for Oil & Gas Emissions

In 2016, EPA finalized new source performance standards for emissions of greenhouse gases in the form of limitations on methane and volatile organic compounds (“VOC”) from the oil and natural gas sector. We have written about that rule before: “Obama Announces New Rules on Oil & Gas Industry’s Methane Emissions,” “EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas…

Federal District Court Enjoins WOTUS Rule in Three More States

          Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied…

 

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