One of the Supreme Court’s recurring environmental law topics is the scope of Clean Water Act (CWA) jurisdiction. Various aspects of CWA jurisdiction and implementation have been addressed over the years by the Court, including the meaning of “navigable waters” in U.S. v. Riverside Bayview Homes, Inc. (1985); Solid Waste Agency of N. Cook Cnty

Under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) and California’s Porter-Cologne Water Quality Control Act, industrial facilities in California are required to obtain coverage under the state’s NPDES general permit for discharges associated with industrial storm water activities (General Industrial Permit) or justify why they are exempt. For regulated facilities, including manufacturing facilities, landfills, mining operations, steam electric power generating facilities, hazardous waste facilities, and oil and gas facilities, failure to obtain coverage under the General Industrial Permit is a potential violation of the Clean Water Act (in addition to state law), which could expose the owner or operator of the facility to potential civil penalties of up to $54,833 per day. Enforcement, however, largely is dependent upon agency inspections or enforcement by citizen groups. Based on estimates by the California Coastkeeper Alliance, many facilities in California may have failed to enroll in the industrial storm water permit program.
Continue Reading

On August 27, 2019, the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Corporation (NERC) issued a White Paper proposing to disclose the names of entities that violate Critical Infrastructure Protection (CIP) standards, while continuing to withhold other details of those violations. This significant change in policy reflects broader issues in FERC’s handling of security information.
Continue Reading

Energy industry: is your insurance sufficient to handle a major cyber event? Larry Bracken, Mike Levine and I, Andrea DeField, address this question and more in our recent article for Electric Light & Power, found here.  In the article, we identify three major gaps in cyber insurance that we routinely see when analyzing coverage

As we have discussed previously, the federal Clean Air Act (CAA) addresses what is often termed “interstate transport.” That is the phenomenon in which emissions from factories, power plants, motor vehicles and many other emission sources are transported by prevailing winds across state lines, sometimes over great distances. The CAA looks to states, first and foremost, to include control measures in implementation plans to reduce emissions that travel into other states. The statutory objective is to prohibit “significant contributions” by upwind states to violations of national ambient air quality standards (NAAQS) in downwind states. Although states have primary responsibility, EPA sometimes has invoked its CAA authority to establish federally enforceable requirements to address significant contributions when it concludes upwind states have not taken sufficient steps. In 2016, EPA adopted its most recent set of regulatory interstate transport controls in a rulemaking action called the “Cross-State Air Pollution Rule Update”—or the “CSAPR Update” for short. On September 13, the US Court of Appeals for the DC Circuit issued a decision in closely-watched litigation involving challenges to the CSAPR Update. (The case is Wisconsin v. EPA, No. 16-1406.) While upholding this EPA regulation in most respects, the court ruled in favor of a challenge that concerns the timing of upwind-state emission controls.
Continue Reading

The South Coast Air Quality Management District’s (SCAQMD or the District) Regional Clean Air Incentives Market (RECLAIM) made history as California’s first emissions cap-and-trade program. But the District’s decision to sunset the program has resulted in significant uncertainty surrounding RECLAIM’s transition for local communities and industry alike.

Widely acclaimed at its 1993 inception, the program was intended to promote more efficient emissions reductions by allowing facilities to meet their annual cap either by adopting pollution controls directly or by purchasing RECLAIM trading credits (RTCs) from other facilities able to install controls at lower cost and achieve emissions below their caps. In its early years supporters praised RECLAIM as a success, pointing to significant reductions across the South Coast Air Basin. But in more recent years, the US Environmental Protection Agency (EPA) and other stakeholders criticized RECLAIM as falling short of expectations, pointing to periods of RTC price spikes reducing the program’s coverage and a subsequent glut of RTCs from plant closures that critics claim lowered the incentive for pollution reductions at remaining RECLAIM facilities.
Continue Reading

The Railroad Commission of Texas has authority to issue permits for discharges associated with oil and gas operations in the state, but it does not yet have delegation of the NPDES permitting program. Thus, to the extent that produced water discharges are not currently barred under federal regulations, facilities seeking authorization for these discharges to waters of the US must obtain authorization from both EPA and the RRC. This article highlights Texas efforts underway to obtain NPDES delegation for produced water discharges.
Continue Reading

EPA’s National Compliance Initiatives for fiscal years 2020 through 2023, recently released, replace the former National Enforcement Initiatives and aim to help regulated entities understand their compliance obligations. Additionally, the Agency plans to focus on returning to compliance through information actions, building state capacity, supporting state actions, bringing Federal civil administrative actions and bringing civil or criminal judicial enforcement actions.
Continue Reading