In December 2018, an article in this blog flagged a petition for EPA rulemaking under the Toxic Substances Control Act (TSCA) that, if denied, had the potential to set up precedent-setting litigation on citizens’ ability to use the courts to require EPA action under TSCA. Now, nearly a year later, the scenario that article described is coming true. In a challenge to EPA’s denial of that petition, a federal district court is poised to decide what constitutes a petition for issuance of a new rule as opposed to one for amendment of an existing rule—and in the process, to decide when a court may cast aside deference to EPA and undertake its own evaluation independent of the Agency’s record and conclusions.
Continue Reading

In the wake of the April 19 ruling by Judge Morris of the US District Court of the District of Montana that required the DOI to conduct an environment review on its decision to lift the coal leasing moratorium, the parties disagree on the necessary remedy and the next steps. Instead of immediately reinstating the moratorium, Judge Morris ordered additional briefing on the remedy, setting a July 22 deadline. The parties submitted dueling briefs; while DOI is requesting additional time to finalize its environmental review for its decision to lift the moratorium, environmental groups and states are requesting that the court vacate the Secretarial Order that lifted the moratorium altogether.
Continue Reading

In response to a court order, the Bureau of Land Management released a draft environmental assessment evaluating the potential environmental impacts of lifting the federal coal leasing moratorium. The publication opens a 15-day comment period that ends on June 6, 2019. The assessment focuses on the environmental impacts resulting from the three non-exempt leases issued as a result of the Zinke Order and the eight pending leases that would be produced about two years later if the moratorium remained in effect.
Continue Reading

The Department of Treasury and Internal Revenue Service have released Notice 2019-32 seeking comment on key issues to be interpreted in the Section 45Q carbon oxide sequestration tax credit. Congress significantly enhanced the Section 45Q tax credit in the Bipartisan Budget Act of 2018, increasing the credit from $10/ton for CO2 used as a tertiary injectant (i.e., to produce oil or gas) to $35/ton; and increasing the credit for CO2 geologically stored but not used as a tertiary injectant from $20/ton to $50/ton. See our previous blog post here for additional details on the applicable credit amounts for projects before and after enactment of the Bipartisan Budget Act and other credit amount details.
Continue Reading

2018 was a banner year for M&A activity in the energy space, with numerous high dollar value transactions in the upstream, midstream, downstream and oil field services (OFS) segments. As investors in the public securities markets have shown a significantly decreased appetite for new issuances of equity by energy companies, the preferred exit or growth strategy for 2018 has been through strategic mergers, acquisitions or divestitures. These transactions have manifested themselves in various forms: asset acquisitions and divestitures, private equity investment into “drillcos” with strategic oil and gas companies, public-public mergers between OFS companies and upstream shale drillers, and simplification transactions by master limited partnerships (MLPs) in the midstream space. In addition to all this M&A activity, one element has become significantly more prevalent in the oil and gas industry throughout 2018 and shows no signs of letting down for 2019: water.
Continue Reading

On November 16, 2017, the D.C. Circuit heard oral argument in the cases challenging EPA’s 2012 rule allowing states to rely on compliance with the Cross-State Air Pollution Rule (CSAPR) to satisfy electric generating units’ “best available retrofit technology” (BART) requirements for emissions of nitrogen oxides and sulfur dioxide under the Clean Air Act (CAA). The cases are UARG v. EPA, No. 12-1342­ and consolidated cases (D.C. Cir.).
Continue Reading

Highway Interchange

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?


Continue Reading

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