Second Circuit Affirms Waiver Period for State Water Quality Certification Begins Upon Receipt of Request for Certification

On March 12, 2018, the United States Court of Appeals for the Second Circuit affirmed a Federal Energy Regulatory Commission (FERC) order finding that delays by the New York Department of Environmental Conservation (NYDEC) in reviewing Millennium Pipeline Company’s application for water quality certification constituted waiver of NYDEC’s authority under the Clean Water Act (CWA).

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House Committee Report Highlights Russian Use of Social Media to Disrupt Pipeline Projects

Earlier this month, the United States House of Representatives Committee on Science, Space, and Technology published a staff report entitled “Russian Attempts to Influence U.S. Domestic Energy Markets by Exploiting Social Media.” The report is the result of the Committee’s investigation into Russian efforts to influence U.S. energy markets.

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Recent Developments in Regional Haze Policy: EPA and Environmental Groups Battle Over a New Program for Texas

As we have noted previously (An Opportunity for a New Federal-State Relationship Under the Regional Haze Program, July 17, 2017; A New Perspective on Regional Haze Regulation?, February 14, 2017), the US Environmental Protection Agency (EPA) recently signaled a new openness to recognizing state prerogatives and flexibility in implementing the regional haze program under the Clean Air Act (CAA). That program addresses impairment of visibility in the skies over protected national parks and wilderness areas that is attributed to widespread haze resulting from emissions to the air from varied sources. Continue Reading

Equator Principles Gain Global Traction

EP Association Updating International Environmental Standards Following Admission of New Member Financial Institutions from China, Japan, Korea, Sweden and Taiwan

Following its annual meeting in São Paulo, Brazil, the Equator Principles Association (EP Association) announced plans to update its globally recognized risk management framework to reflect significant changes to the manner in which environmental and social impacts and risk mitigation strategies are recognized and managed by financial institutions, corporations, governments, non-governmental organizations (NGOs) and society. Continue Reading

Judge Halts Monsanto Warning Label on First Amendment Grounds

In a surprising decision, a federal judge last week blocked California from requiring Monsanto to put Proposition 65 warning labels on its Roundup products, ruling there is “insufficient evidence” that glyphosate—the active ingredient in the popular weed killer—causes cancer. Continue Reading

Federal District Court Halts Construction of Louisiana Pipeline Due to Corps’ Failure to Explain Off-Site Mitigation

This week, the U.S. District Court for the Middle District of Louisiana granted a preliminary injunction, halting construction of the $750 million Bayou Bridge Pipeline. Judge Shelly D. Dick concluded that the U.S. Army Corps of Engineers, in authorizing the project, did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction. In addition, the Court found the Corps’ environmental analysis failed to sufficiently consider and address historical impacts to wetlands from similarly situated pipelines. Thus, the Court held that these deficiencies likely violated the National Environmental Policy Act (NEPA) and ordered the 162-mile oil pipeline to halt construction within the Atchafalaya Basin, a large wetland habitat for a variety of fish and wildlife species and a critical component of regulating flooding and stream recharge in the region. As we recently saw with the D.C. Circuit’s decision to vacate authorizations for the Sabal Trail Pipeline, this is another example of courts and environmental organizations relying on errors in a federal agency’s NEPA analysis to justify enjoining pipeline construction or operations.

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Enforcement Trends: Federal Enforcement of Renewable Fuel Standards Marketplace Fraud Continues

While still early in the new administration, emerging enforcement trends are beginning to indicate that EPA and the U.S. Department of Justice (DOJ) will continue to pursue cases involving fraud in the Renewable Fuel Standard (RFS) program. We noted last summer that EPA and DOJ have pursued numerous enforcement actions against renewable fuel producers and importers that generated invalid Renewable Identification Numbers (RINs), which are the “currency” of the RFS program. Although it is reasonable to assume the vast majority of program participants comply with EPA’s regulations, the program has suffered from high profile cases of fraud and abuse requiring federal enforcement, including criminal prosecutions. Recent cases and statements by DOJ and EPA officials show that federal prosecution of RFS fraud, particularly that involving multi-state schemes, will continue. And RFS fraud cases may even occupy a larger portion of EPA’s enforcement bandwidth as EPA gives greater deference to states in enforcement of delegated programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act. Continue Reading

More Energy From Carbon, Lower Emissions

There are 7.6 billion people on the planet today. By 2050, there are projected to be 9.7 billion—or put another way, in just thirty years we will add the equivalent population of seven United States. The world’s most credible energy forecasting entities predict a global increase over that time not only in demand for energy, but demand for fossil energy. Even with steady increases in energy efficiency and a massive increase in renewables, consumption of fossil fuels will grow. That means carbon dioxide emissions won’t be reduced significantly without some technology to do so. Continue Reading

Scoring Gold at the Superior Court: California Water Boards’ Regulatory Authority Successfully Challenged

Judicial review of state agency regulatory orders in California has long been seen as an exercise in futility as state courts typically give significant deference to agency determinations. However, two recent decisions by California Superior Courts have bucked that trend and may provide renewed hope that success at the trial court level is not out of reach. Continue Reading