For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy. Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate. The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Haw. Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018); Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018).
The U.S. Court of Appeals for the Second Circuit in July issued a long-awaited decision in the case Cooling Water Intake Structure Coalition v. U.S. Environmental Protection Agency (EPA), upholding the EPA’s 2014 Rule establishing requirements pursuant to Clean Water Act (CWA) section 316(b) for cooling water intake structures (CWIS) at existing facilities. The court also upheld the biological opinion (BO) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) on the 2014 Rule.
The Second Circuit’s decision upholding the rule offers EPA a key victory and provides larger steam-electric power plants and manufacturing facilities more certainty regarding regulatory requirements they must satisfy to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the CWA.
On May 14, 2018, the Department of Energy Office of Electricity Delivery & Energy Reliability released its Multiyear Plan for Energy Sector Cybersecurity. The plan is significantly guided by DOE’s 2006 Roadmap to Secure Control Systems in the Energy Sector and 2011 Roadmap to Achieve Energy Delivery Systems Cybersecurity. Taken together with DOE’s recent announcement creating the new Office of Cybersecurity, Energy Security, and Emergency Response (“CESER”), DOE is clearly asserting its position as the energy sector’s Congressionally-recognized sector-specific agency on cybersecurity.
On May 17, 2018, the Federal Energy Regulatory Commission (Commission) held its May 2018 open meeting. Highlights of the meeting include:
In his opening remarks, Chairman McIntyre announced that the Commission would soon be turning to a review of its long-standing policies under the Public Utilities Regulatory Policies Act of 1978 (PURPA). He noted that the Commission had initiated a review of these policies in 2015-2016 and had held a technical conference on certain PURPA issues in 2016. He has directed Commission staff to restart the initiative so the Commission can determine what, if anything, should be done to improve and update the policies. The other commissioners were supportive of this initiative. Commissioner Powelson pushed for an expedited review of the PURPA policies, referencing the previously developed record. Commissioner Glick indicated that any changes to policies should address issues raised not only by industry, but also by qualifying facility developers. The commissioners also acknowledged that more substantial changes to PURPA would have to be addressed by Congress. Continue Reading FERC May 2018 Open Meeting Highlights
On April 19, 2018, the Federal Energy Regulatory Commission (Commission) held its April open meeting. Among other things, the Commission issued major orders concerning the interconnection of large generating (and storage) facilities to the electric transmission grid and price formation in wholesale power markets. It also issued a notice of inquiry (NOI) exploring potential changes to the Commission’s policies governing the certification of new interstate natural gas facilities, addressed in a separate post. The Commission also took action on various other matters. Continue Reading FERC April 2018 Open Meeting Highlights
In April 2015, the United States Environmental Protection Agency issued a final rule governing the control and management of coal combustion residuals (CCR) in surface impoundments used to treat those residuals. In general, CCR consists of materials that result from the combustion of coal at coal-fired electric utility plants. As part of its rule, EPA required operators to submit initial closure plans for impoundments and post them on a publicly available website in November 2016. Under the rule, these initial closure plans must contain information related to the method of closure, and are subject to change as operators gather additional information. Continue Reading District Court Dismisses First Ever CCR Rule Citizen Suit
On February 15, 2018, the Federal Energy Regulatory Commission (Commission) held its February 2018 open meeting. Among other things, the Commission acted on two major rulemakings and took significant action regarding transmission planning in PJM. Continue Reading FERC February 2018 Open Meeting Highlights
Federal agencies that authorize or permit large infrastructure projects, like interstate natural gas pipelines, are often subject to the requirements of the National Environmental Policy Act (NEPA), and environmental organizations frequently rely on NEPA to challenge a project. The D.C. Circuit recently struck down a decision by the Federal Energy Regulatory Commission (FERC) to approve the construction and operation of three interstate natural gas pipelines because the Court found defects in FERC’s NEPA analysis. The court’s decision to vacate FERC’s authorization now threatens to shut down the pipelines, including the Sabal Trail pipeline currently supplying natural gas to newly constructed power plants in Florida.
The House Energy & Commerce Committee is considering revising the Public Utility Regulatory Policies Act (PURPA), a 1978 law enacted in the wake of the 1973 oil embargo to promote energy conservation and production by domestic alternative energy sources, including renewables. Why is Congress considering changing it, and what would the proposed revisions do? Continue Reading Congress Considers PURPA Revisions
The Federal Energy Regulatory Commission (FERC or the Commission) announced last month that it will review its policies governing the certification process for natural gas pipelines. The announcement was made by FERC Chairman Kevin J. McIntyre on December 21, 2017, in fulfillment of a pledge that he made during his Senate confirmation hearing in September 2017. The format and scope of the review are still being determined.
Read the full report on PipelineLaw.com.