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

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.

Continue Reading D.C. Circuit Raises the Stakes: NEPA Defect Sufficient to Halt Pipeline Operations

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.

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 The Long and Winding Road for CSAPR and Regional Haze

When Congress enacted the Endangered Species Act (“ESA”) to protect and recover imperiled species and the ecosystems on which they depend, it emphasized the need to strike the proper balance between protecting species and allowing productive human activities. Widespread concern that this balance has been lost has sparked movement within the Trump Administration and Congress to improve the ESA and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services). Many of these reform efforts are focused on ensuring earlier and increased involvement of states and other regulated entities and on improving the listing/delisting process to make certain that the extraordinary protections of the ESA are imposed, where warranted, and lifted, as appropriate.

Continue Reading Catching Our Balance: Opportunities for ESA Reform

Fifty years ago, the Supreme Court held that in the Federal Power Act (FPA), Congress had drawn a “bright line, easily ascertained, between federal and state jurisdiction…by making [federal] jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States.” FPC v. Southern California Edison Co. (Colton), 376 U.S. 205, 206-07 (1964). Several recent federal court decisions, including two decisions addressing the implementation of Zero Emissions Credits (ZECs) by New York and Illinois, highlight just how blurred that “bright line” has become in an era where Federal Energy Regulatory Commission (FERC) regulation relies primarily on markets, rather than cost-of-service ratemaking, to ensure just, reasonable and not unduly discriminatory electricity prices. For good measure, these decisions also break new ground on the justiciability of FPA preemption claims brought by private parties in federal court.

Continue Reading Update: Recent Court Decisions, the Evolving Divide Between FERC and States Jurisdiction, and the Justiciability of Private FPA Preemption Claims

Environmental groups are raising the stakes for power companies facing allegations of coal-ash liability. Power plants that burn coal to produce electricity also create byproducts in the process, known as “coal combustion residuals,” or CCRs. CCRs go by several names, but are commonly known as “coal ash.”

Historically, power companies have stored CCRs in settling ponds, also known as “coal-ash basins.” Coal-ash storage and disposal can lead to allegations of groundwater contamination and environmental contamination claims. Environmental groups have sought to require companies to pay for remediation of disposal sites and alleged groundwater contamination; address alleged natural resource damages; and conduct extensive monitoring and sampling of onsite and offsite sediments, groundwater, fish, and other wildlife.

Continue Reading Coal Ash Poses Slew of Coverage Issues

On August 23, the Department of Energy (DOE) released a study entitled “Staff Report to the Secretary on Energy Markets and Reliability.” This is the so-called “DOE grid study” that Secretary of Energy Rick Perry ordered his chief of staff Brian McCormack to produce in an April 14 memorandum, noting that “Over the last few years…grid experts have expressed concerns about the erosion of critical baseload resources.”

These concerns have been simmering for several years. As the US Environmental Protection Agency was developing the rule that became the Mercury and Air Toxics Standard, the Federal Energy Regulatory Commission (FERC)—prompted by then-Senate Energy and Natural Resources Committee Ranking Republican Lisa Murkowski—held a multi-day meeting to evaluate potential electric reliability impacts from anticipated closings of coal-fired power plants prompted by the rule.

Continue Reading DOE Grid Study Recommends Market Improvements