Cooperative Federalism At Work: States Differ on Lake Erie Algal Blooms

In August 2014, residents of Toledo lost the use of tap water for two days because of a toxic algal bloom in the western basin of Lake Erie, which is their water source. In subsequent summers, the lake’s algal blooms have been smaller, but they remain a persistent phenomenon. In fact, the National Oceanic and Atmospheric Administration (NOAA) is predicting a significant cyanobacteria algal bloom in western Lake Erie this summer.

Numerous definitions of “harmful algal blooms” exist, but they generally can be understood as excessive growths of various species of phytoplankton, protists, cyanobacteria, or macro and benthic algae that negatively impact water quality, aquatic ecosystem stability, or animal and human health. The blooms may be toxic or nontoxic. Even nontoxic blooms can have repercussions for drinking water treatment, recreational use of the waterbody, and the overall economy.

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An Opportunity for a New Federal-State Relationship Under the Regional Haze Program

Since President Trump’s inauguration and the beginning of Scott Pruitt’s tenure as administrator of the U.S. Environmental Protection Agency (EPA), much of the focus of Clean Air Act activity in the new administration has been on global climate change issues. As more time passes, however, EPA is beginning to address other areas of Clean Air Act regulatory policy, and, in some respects at least, charting a new course that departs from the record of the Obama administration. One of the areas to which EPA has started to give renewed attention is the regional haze program. Continue Reading

From “All of the Above” to “See What Sticks”

Throughout the Obama administration, federal officials from the President on down touted an “all of the above” approach to energy policy.  At the same time, they pressed forward with environmental regulations—climate change rules in particular—that would have made a seismic shift in the role fossil fuels play in the nation’s energy mix.

We all know the Trump administration is poised to make major changes.  A shakeup for the EPA was a consistent theme of the Trump campaign. The President made things official in March when he signed an executive order that, among other things, called for a “review” of the Clean Power Plan (CPP), the EPA’s program to regulate greenhouse gas emissions from existing power plants, and a proposed rule regarding the CPP is now under review at the White House Office of Management and Budget. The administration has also announced plans to cut the EPA’s budget, to take a new “red team-blue team” approach to climate change science, and to pull the U.S. out of the Paris climate accord. That’s quite a lot of activity for an administration that is often accused of moving too slowly. Continue Reading

George Clemon Freeman Jr. – He Ever Will Be Missed

George Clemon Freeman Jr. – founding father of Hunton & Williams’ environmental law practice passed away on June 26, 2017, at age 88.  Some of the tributes to George have mentioned a presentation George made to members of a client group in the mid 1970’s.  As remembered by Henry Nickel, George had the unenviable task of speaking to group members right after lunch.  George’s less-than-exciting assigned topic was the regulation of priority pollutants under section 307 of the Clean Water Act.  Seeing his audience about to doze off, George – perhaps drawing on his Yale glee club experience – deviated from his prepared remarks (as he was known to do) and launched into an impromptu version of the Lord High Executioner’s “I Have A Little List” song from Gilbert & Sullivan’s The Mikado.  In the Gilbert & Sullivan version of the song, the list was of those to be beheaded:

“As some day it may happen that a victim must be found
I’ve got a little list – I’ve got a little list
Of society’s offenders who might well be underground
And who never would be missed – who never would be missed.”

Watch the video.

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The Rockets’ Red Glare…

Earlier this week, July 4, 2017, was the nation’s 241st birthday. In Washington, DC, and in countless other places across the country, the event was celebrated with dazzling fireworks displays. My childhood days are long behind me. But, a good fireworks display still evokes awe and gives me goose bumps. Although fireworks are synonymous with the 4th of July, Americans are not alone in their appreciation of fireworks. All across the globe—from Europe, to Asia, to South America and back again—fireworks are a universal symbol of celebration. Continue Reading

Renewable Fuel Standards: Marketplace Fraud Leads to Federal Enforcement

Increased use of renewable fuels is a core element of our country’s quest for energy independence and has also been used to incentivize private efforts to reduce greenhouse gas emissions. Now more than ten years old, the Renewable Fuel Standard (RFS) program has helped make ethanol made from sugarcane and compressed natural gas produced from sludge at municipal wastewater treatment facilities common household concepts. While the vast majority of renewable fuel producers are compliant, the program has suffered from high-profile cases of fraud and abuse requiring federal enforcement, including criminal prosecutions. Continue Reading

EPA’s New Chemicals Review Program – A Status Report

Last year Congress directed the US Environmental Protection Agency (EPA) to review new chemicals by a new process. A major question for manufacturers and consumers is whether EPA can do this within a reasonable time period without unnecessarily getting in the way of innovation.

Since enactment of the Lautenberg Act amending the Toxic Substances Control Act (TSCA) in June 2016, the pace of EPA’s review of new chemicals has slowed dramatically. While EPA’s pre-enactment new chemicals program handled around 1,000 premanufacture notifications (PMNs) annually, EPA estimates that a backlog of about 600 new chemicals had built up by January 2017, which created a substantial concern in the regulated community.

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Trump Administration Releases Highly Anticipated Proposal to Rescind WOTUS Rule

Today, EPA and the Corps released a highly anticipated proposal to rescind the Obama Administration’s controversial 2015 Clean Water Rule. The June 2015 rule, which has been stayed since October 2015, would broadly define the scope of “waters of the U.S.” (WOTUS) subject to federal regulation and permitting requirements under the CWA. The proposed rescission is the first step of a two-step process to repeal and replace the 2015 Clean Water Rule with a new WOTUS rule. With today’s proposal, EPA and the Corps are proposing to officially rescind the 2015 rule and continue to implement the regulatory definition in place prior to the 2015 rule while they work to promulgate a new rule to define WOTUS.

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Water Quality Certification Waiver for Natural Gas Pipeline Projects an Issue for FERC, and Not the Court, to Decide

In a closely watched case, the United States Court of Appeals for the D.C. Circuit last week dismissed an interstate natural gas pipeline company’s challenge to the State of New York’s delay in issuing a water quality certification under section 401 of the federal Clean Water Act (CWA) for the Millennium pipeline project. While the company requested a ruling that the state had waived its right to make a decision on water quality certification for the project, the court decided to dismiss the action – holding that even if the state agency’s lengthy delays did constitute a waiver under CWA section 401, there was no cognizable injury to the company that would give it standing to challenge the delays in court. Rather, according to the court, the remedy is for the company to present evidence of waiver directly to the Federal Energy Regulatory Commission (FERC) to seek authorization to begin construction of the project. The case is one of several pending across the country that involve a state’s authority to issue, deny, or waive a CWA water quality certification for interstate natural gas pipeline projects.

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Not so Fast! Bay Area Regulators Hold Off on Adoption of GHG Emissions Caps on Refineries

In a surprising turn of events, the Board of the Bay Area Air Quality Management District (BAAQMD) voted to delay adoption of first-of-its-kind caps on refinery greenhouse gas (GHG) emissions. As we reported just three weeks ago, the Board was slated to adopt Regulation 12, Rule 16: Petroleum Refining Facility-Wide Emissions Limits (Rule 12-16), a regulation that would establish refinery-specific, facility-wide caps on GHG emissions from the five Bay Area refineries and three support facilities.  At a public hearing last week, in what initially looked to be a sure thing, the Board pivoted.  Signaling unease about legal vulnerabilities surrounding procedure, the Board voted to delay adoption of the regulation until at least September 2017.

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