On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Court”) issued an en banc rehearing order holding that the Natural Gas Act (“NGA”) does not permit the Federal Energy Regulatory Commission (“FERC”) to issue tolling orders for the sole purpose of preventing rehearing requests from being denied by operation of law.  See Allegheny Defense Project, et al. v. FERC, No. 17-1098 (“Allegheny”).  The decision upends a practice that has been used by FERC for decades to delay addressing the merits of requests for rehearing.  Because the NGA and the Federal Power Act (“FPA”) have essentially identical rehearing provisions, Allegheny’s holding is very likely to be extended to rehearing requests under the FPA.

Continue Reading DC Circuit Upends Long-Standing FERC Practice on Tolling Orders

The United States-Mexico-Canada Agreement (USMCA), a trilateral trade agreement between the three counties, entered into force on July 1, 2020 replacing the North American Free Trade Agreement (NAFTA).

Continue Reading The USMCA, Trade, and the Environment

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.

Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy

On June 11, 2020, the California Assembly passed the Toxic-Free Cosmetics Act, Assembly Bill (A.B.) 2762 [1], by a bipartisan vote of 54-0.  If enacted by the Senate, the law would be the first in the United States to ban twelve ingredients, including mercury and formaldehyde, from beauty and personal care products sold in California due to toxicity concerns.

Continue Reading Cosmetics Sold in California are Set for a Face Lift

Recent press reports note that air quality has improved worldwide and in the United States during the ongoing pandemic1. Shortly prior to the pandemic, though, stories lamented declining American air quality2. What’s really going on?  Is the news good or bad?

Continue Reading Air Quality in the United States has Improved Dramatically since Enactment of the Clean Air Act

On May 30, 2020, for the first time in nine years, a manned spacecraft launched from American soil and ultimately docked at the International Space Station, just under a day later.  This launch, which marks a significant step in the development of reusable rocket technology, will undoubtedly inspire a new generation of astronauts, astrophysicists, engineers, and others who are interested in sustainable space exploration.  It has been reported that spacecraft launches of this nature burn approximately 400 metric tons of kerosene and leave behind a trail of carbon dioxide (“CO2”) exceeding two centuries worth of CO2 emissions from those of an average car.

Continue Reading New York Proposes Regional Greenhouse Gas Changes

On June 1, the U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, signed a final rule seeking to increase predictability for applicants by clarifying the regulations that govern the Clean Water Act (CWA) Section 401 water quality certification process.

Continue Reading EPA Finalizes CWA Section 401 Water Quality Certification Regulation

The Treasury Department and IRS have issued long-awaited Proposed Regulations regarding the tax credit for carbon capture and sequestration under Section 45Q of the Code1 (the “section 45Q credit”).

Generally, the amount of the section 45Q credit and the party that is eligible to claim the credit depend on whether the taxpayer captures qualified carbon oxide using carbon capture equipment originally placed in service at a qualified facility before February 9, 2018 (“Old 45Q Facility”), or on or after February 9, 2018 (“New 45Q Facility”), and whether the taxpayer disposes of the qualified carbon oxide in geological storage (“sequestration”), uses it as a tertiary injectant in a qualified enhanced oil or natural gas recovery project (“EOR”), or utilizes the carbon oxide in certain specified ways (“utilization”). The effective date of the amendments to the Code extending and expanding the section 45Q credit is February 9, 2018 (the “Credit Effective Date”). The Credit Effective Date appears throughout the Proposed Regulations to distinguish between Old 45Q Facilities and New 45Q Facilities and establishing the effective date for certain provisions.

Continue Reading Treasury Issues Proposed Regulations on Section 45Q Tax Credit for Carbon Capture

On May 21, 2020, the Federal Energy Regulatory Commission (“FERC”) issued Opinion No. 569-A1 – the latest step in the recent evolution of FERC’s policies governing the determination of public utilities’ base return on equity (“ROE”) under Section 206 of the Federal Power Act (“FPA”). In recent years, FERC has been revising its long-standing policies when addressing complaints challenging the base ROEs of transmission-owning, FERC-jurisdictional public utilities in the ISO New England, Inc. (“ISO-NE”) and Midcontinent Independent System Operator (“MISO”) regions. In particular, FERC has modified its policies regarding the use of various models to estimate ROE to account for various changes in capital market conditions since the 2008-09 recession.

Continue Reading FERC Again Revises Methodology Governing Public Utility Return on Equity: Opinion No. 569-A

Agency guidance will be subject to certain standards and procedures under a proposed rule published by EPA in the Federal Register on May 22, 2020.  According to EPA, the proposed rule is “intended to increase the transparency of EPA’s guidance practices and improve the process used to manage EPA guidance documents.”  EPA will accept written comments on the proposed rule until June 22, 2020.

Continue Reading A Rule on Guidance: EPA to Propose Rule Establishing Procedures and Requirements for Issuing and Managing Guidance Documents