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March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

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By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

CATEGORIES: Cercla, Climate Change, OSHA, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

January 3, 2019 How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water

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Drinking water

By Steven M. Siros

In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl  substances (PFAS). However, the Agency for Toxic Substances and Disease Registry  (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016.  The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.

The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized. 

However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.   

ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States. 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven M. Siros

December 12, 2018 The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA

Sigel

 

By Gabrielle Sigel

 

On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S.  The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”).  The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion.  The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration.  80 Fed. Reg. 37054.  Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule.  See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018).  As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.

The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.”  By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.”  The six categories are, in general:

  1. Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
  2. Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
  3. Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
  4. Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
  5. Impoundments – impoundments of otherwise defined WOTUS
  6. Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier

See the exact language of the six categories in the Proposed WOTUS Rule here.

The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.

The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language.  The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches.  In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA.  Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.

Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation.  The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.

The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register.  Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.

 

 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Gabrielle Sigel

November 14, 2018 ATSDR and U.S. EPA--Conflicting Guidance Regarding Emerging Contaminant Regulatory Standards?

  By Steven M. Siros   ASTDR

The director of the Agency for Toxic Substances and Disease Registry (ATSDR), Peter Breysse, continues to defend his agency's minimal risk levels (MRLs) for perfluorinated chemicals that were released in June 2018 as part of a draft toxicological profile. In response to questions posed at a recent Senate hearing, Breysse noted that ATSDR’s draft MRLs roughly corresponded to drinking water levels of 14 parts per trillion (ppt) for perfluorooctane sulfonate (PFOS) and 21 ppt for perfluorooctanoic acid (PFOA). Where these levels are exceeded, ATSDR has recommended that residents take steps to lower their exposures and contact state and local authorities. Breysse also recommended that residents consult with physicians and noted that ATSDR has information on its website for physicians to consult regarding exposure risks for these chemicals.

The drinking water levels referenced in the ATSDR toxicological profile (14 ppt for PFOS and 21 ppt for PFOA) correspond generally with regulatory standards implemented in several states, including New Jersey and Vermont, both of which have the lowest regulatory levels for these compounds in the United States. However, the ATSDR MRLs are much stricter than U. S. EPA’s drinking water advisory level of 70 ppt.  In addition, many news outlets reported that U.S. EPA had sought to delay ATSDR’s issuance of its June 2018 toxicological profile.  Perhaps coincidentally, at about the same time as ATSDR issued its draft report, U.S. EPA announced plans to begin to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS. 

Although ATSDR and U.S. EPA continue to work cooperatively (at least on paper) to address PFOA and PFOS at contaminated properties throughout the United States, it remains to be seen how well these agencies will cooperate in setting an MCL for these contaminants.  The agencies' "cooperative" relationship may face choppy waters, especially in light of ATSDR's continued defense of its MRLs and U.S. EPA's skeptical view regarding same.

CATEGORIES: Climate Change, Consumer Law and Environment, Hazmat, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

November 8, 2018 In Midterm Elections, Colorado Voters Reject High Profile Anti-Fracking Initiative

By Matthew G. Lawson  Fracking

On Tuesday, November 6th, Colorado voters rejected a highly contested ballot initiative which would have set unprecedented limits on oil and gas drilling in the state. The measure, Proposition 112, would have prohibited drilling new oil or natural gas wells within 2,500 feet of certain occupied buildings—including homes, schools and hospitals; various water sources—including lakes, rivers and creeks; and other areas specifically designated as “vulnerable” by the state. In total, a report from the Colorado Oil & Gas Conservation Commission estimated that the measure would have prohibited new hydraulic fracturing operations on as much as 95% of the land in Colorado’s top oil and gas producing counties.   

The proposition received a high degree of pre-election attention, with individuals from politician Bernie Sanders to actor Leonardo DiCaprio encouraging Colorado voters to support the initiative. While early polling indicated Proposition 112 was supported by the majority of Colorado voters, the initiative was ultimately defeated with 57% of the state’s voters opposing it in Tuesday’s elections. In what may have served as a fatal blow, Colorado’s governor-elect, Jared Polis, distanced himself from the ballot initiative in the days leading up to the election. The newly elected Democrat had campaigned as a pro-environment alternative to his Republican opponent, but categorized the ballot initiative as “economically damaging” to the state of Colorado.

At present, New York, Vermont, and Maryland are the only states to have established outright bans on fracking. None of those states, however, has oil and gas reserves approaching the production capacity of Colorado. The state’s oil and gas industry has grown dramatically in the last decade, with the state’s production of crude oil rising from 73,000 barrels per day in 2008 to 477,000 barrels per day in August 2018. As the state’s production of oil and gas continues to grow, it appears likely that legislative battles over fracking regulations will continue to unfold.

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Matthew G. Lawson

October 26, 2018 New Law Requires Widespread Testing for Unregulated Contaminants

  By Steven M. SirosWater

 

On October 23, 2018, President Trump signed into law America’s Water Infrastructure Act of 2018 which, in addition to authorizing federal funding  for water infrastructure projects, also requires drinking water systems serving more than 3,300 people to test for unregulated contaminants pursuant to U.S. EPA’s Unregulated Contaminants Monitoring Rule (UCMR).  Prior to this new law, only drinking water systems that served more than 10,000 people were required to monitor for unregulated contaminants.  Contaminants covered by the UCMR include PFOA, PFOS, 1,2,3-TCP, hexavalent chromium and 1,4-dioxane.  This new testing requirement, which goes into effect in 2021, is expected to add more than 5,000 drinking water systems to the list of systems that are required to test for these unregulated contaminants. 

The challenge that continues to be faced by drinking water systems across the country is what to do if these contaminants are in fact found in the drinking water supply.  As their name would imply, U.S. EPA has yet to set drinking standards for these contaminants although many states and local entities continue to enact a patchwork of regulatory requirements often without regard to the technical feasibility of treating these chemicals and/or the health risks actually posed by these chemicals.  Unfortunately, until such time as U.S. EPA takes action to enact a federal standard, the regulated community will continue to be subject to this regulatory quagmire and now, with the new testing requirements, more drinking water systems will be forced to struggle with this issue without any clear regulatory guidance.

CATEGORIES: Water

PEOPLE: Steven R. Englund

October 17, 2018 Trump Administration Releases Fall 2018 Regulatory Agenda

Torrence_jpgBy Allison A. Torrence

The Trump Administration has released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. This regulatory agenda “reports on the actions administrative agencies plan to issue in the near and long term [and] demonstrates this Administration’s ongoing commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.”

According to the Trump Administration, the regulatory agenda reflects the following broad regulatory reform priorities:

  • Advancing Regulatory Reform
  • Public Notice of Regulatory Development
  • Transparency
  • Consistent Practice across the Federal Government

The EPA-specific regulatory agenda lists 148 regulatory actions in either the proposed rule stage or final rule stage, and provides information about the planned regulatory actions and the timing of those actions. Notable regulatory actions under consideration by EPA include:

More information, and EPA's Statement of Priorities, can be found here.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

September 12, 2018 Pipeline Company Found Guilty for 2015 California Coastal Oil Spill

Plains was convicted of one felony for unlawfully discharging oil into state waters and eight misdemeanors for the following: failing to timely call emergency response agencies; violating a county ordinance banning oil spills; and killing marine mammals, protected sea birds, and other sea life.  Sentencing will be held on December 13, 2018.

According to a statement by California Attorney General Xavier Becerra, the verdict “should send a message: If you endanger our environment and wildlife, we will hold you accountable. At the California Department of Justice, we will continue prosecuting corporate negligence and willful ignorance to the fullest extent of the law.”  (Emphasis added.)

As noted in Law360 (sub. req.), the verdict “underscore[s] the importance of pipeline companies taking their maintenance, inspection and compliance duties seriously, especially in states like California which have strict requirements and liability where knowledge or intent isn’t necessary to sustain criminal convictions.”  Furthermore, the conviction specifically as to failure to notify emergency responders “underscores the importance of that duty and that companies must ensure their policies leave no room for error.”  The relative rarity of criminal environmental convictions for corporations means this case is one to watch is it moves towards sentencing and/or appeals.

CATEGORIES: Climate Change, Hazmat, Sustainability, Water

PEOPLE: Steven R. Englund, Alexander J. Bandza

August 17, 2018 Chicago’s Trump Tower Sued for Violation of the Clean Water Act

By Matthew G. LawsonTrump

In a recently filed lawsuit in Cook County Circuit Court, the State of Illinois accused Trump International Hotel & Tower of violating multiple clean water laws and endangering fish and aquatic life in the Chicago River. The lawsuit, filed on August 13, 2018 by Illinois Attorney General Lisa Madigan, alleges that the Trump Tower’s water intake cooling system failed to comply with state and federal permit requirements, which are designed to limit the number of fish killed by the intake screens or sudden changes in pressure and temperature caused by the cooling system.  The state’s lawsuit further alleges that the Trump Tower's National Pollutant Discharge Elimination System permit (“NPDES Permit”) expired on August 31, 2017, and that the building had been operating without a permit for nearly a year.

The 1,400 ft. skyscraper is one of the city’s largest users of river water. In order to cool the tower, the building, like most other buildings along the river, uses a water intake cooling system that siphons approximately 20 million gallons of water per day (“MGD”) from the Chicago River. After being utilized to cool the building, this water is subsequently pumped back into the river up to 35 degrees hotter than its original temperature. Because the building's intake system withdraws more than 2 MGD, the building must comply with regulations promulgated under Section 316(b) of the Clean Water Act (“CWA”). According to the attorney general’s lawsuit, these regulations required Trump Tower to document the efforts it has taken to minimize the impact of its intake system on the river’s fish and other aquatic life—actions which the lawsuit claims the building failed to complete. According to a Chicago Tribune article published in June 2018, Trump Tower is the only building relying on water from the Chicago River that has failed to document these efforts. 

In May 2017, Trump Tower submitted a delayed application to renew its then expiring NPDES permit. Despite the building’s alleged failure to timely submit a permit renewal request, it appears the Illinois Environmental Protection Agency (“IEPA”) had been preparing to reissue the Trump Tower’s NPDES Permit as recently as last January. However, the agency changed course after several environmental groups threatened to sue prompting the agency to delay reissuance of the NPDES Permit.

Representatives of the Trump organization have responded to the lawsuit with criticism. “We are disappointed that the Illinois Attorney General would choose to file this suit considering such items are generally handled at the administrative level,” stated a representative for the Trump Organization. “One can only conclude that this decision was motivated by politics.”

Environmental groups responded positively to the lawsuit. The Illinois Chapter of the Sierra Club and Friends of the Chicago River, which had jointly announced their own plans to bring suit against Trump Tower last June, stated that they looked forward to assisting in the state’s lawsuit “to assure an outcome that addresses the permit violations, protects additional aquatic life from harm, and makes the river healthier for fish."

This is not the first time Attorney General Madigan has gone after Trump Tower for discharge violations. In 2012, the State sued Trump Tower for failing to obtain a permit for the same intake system. The 2012 lawsuit resulted in Trump Tower agreeing to pay $46,000 in fines and obtaining the proper permitting. In its most recent lawsuit, the State is seeking a preliminary and (after trial) permanent injunction to stop Trump Tower from using its cooling water intake system. In addition, the complaint seeks $10,000 in daily penalties. In an interesting twist, it appears that industry groups previously urged the Trump Administration’s Environmental Protection Agency to overhaul or eliminate the CWA’s cooling water intake rules, which industry groups described as “cumbersome.”

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Matthew G. Lawson

August 3, 2018 Drinking Water Providers Seek Pause in Rush to Set MCLs for Emerging Contaminants

Siros By Steven M. Siros Free stock photo of cold, water, drink, glass

The presence of emerging contaminants such as perfluorinated chemicals (PFOS)  and 1,4-dioxane in drinking water often make the headlines as sampling technologies become more sophisticated and these contaminants are being detected with increasing frequency in drinking water systems across the country. There has been a significant push to compel regulators to set regulatory standards and/or issue health advisories for these emerging contaminants, but the impact that these standards and health advisories have on drinking water systems cannot be ignored.

In reaction to media coverage of these emerging contaminants in drinking water supplies, state regulators have been at the front of the pack in trying to set what are often conflicting standards that may not always reflect the current state of science regarding these contaminants. These state regulations often fail to consider the difficulties that drinking water suppliers face in complying with these standards, especially in instances where there are not established treatment technologies that are capable of treating these contaminants in a cost-effective manner. In addition, when setting health advisories for various contaminants, U.S. EPA typically does not consider the effect of those advisories on drinking water providers.  It is often the case, however, that these providers are pressured either by state regulators and/or the general public to ensure that the drinking water meets these health advisory levels, which are set without regard to whether cost-effective technologies exist that are capable of treating these emerging contaminants.   

These concerns were recently highlighted in comments submitted by the Association of Metropolitan Water Agencies (AMWA) in response to ongoing efforts by U.S. EPA to set standards for PFOS in drinking water. The AMWA cautioned U.S. EPA from rushing to adopt an MCL for PFOS, noting that “it is crucial that we have effective treatment technologies that are available and feasible to implement before any regulatory or non-regulatory action is taken.” The AMWA further noted that significant gaps existed with respect to the public health effects of PFOS in drinking water systems and recommended that these gaps should be remedied before regulatory standards were set by U.S. EPA. 

The AMWA and other water quality professionals support a federal standard that would apply to all drinking water systems and that appropriately takes into consideration the current state of science regarding these emerging contaminants, but also considers the technical and economic feasibility of treating these contaminants. Otherwise, there will continue to be a patchwork of regulations for these emerging contaminants, as is the case in New Jersey, where the state maximum contaminant level for PFOS has been set at 14 parts per trillion, as compared to the U.S. EPA health advisory of 70 parts per trillion. Another example of such an emerging contaminant is 1,4-dioxane, which has a U.S. EPA health advisory level of 0.35 parts per billion.  Some states have relied on that health advisory level to compel drinking water systems to treat 1,4-dioxane to below 0.35 parts per billion notwithstanding that there are not cost-effective treatment methodologies to treat 1,4-dioxane to that level.  Other states, such as Oklahoma, have no regulatory standard for 1,4-dioxane in drinking water. Until such time as the science and treatment technologies catch up with public perception, it will continue to be difficult for drinking water providers to know with certainty exactly how to deal with these emerging contaminants.

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

June 12, 2018 Environmental Groups Set Stage for Likely Legal Challenge to FERC GHG NEPA Review Policy

Siros By Steven M. Siros Image result for "natural gas pipeline"

On May 18, 2018, the Federal Energy Regulatory Commission (FERC) issued an order denying a rehearing request on FERC’s prior issuance of a certificate of public convenience and necessity for a natural gas pipeline project for Dominion Transmission. An environmental group had challenged that certificate, arguing in part that FERC failed to adequately consider the upstream and downstream impacts of the project. These upstream and downstream impacts, according to the environmental group, included greenhouse gas (GHG) emissions. FERC, on a party-line vote, concluded that the upstream and downstream GHG impacts of this particular project were not sufficiently causally connected to and/or the reasonable foreseeable effect of the project and therefore fell outside of the scope of the required NEPA analysis.  FERC distinguished its holding with the decision in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) by noting that in that case, the pipeline project was delivering natural gas to identifiable gas-fired electric generating plants and therefore the downstream use of the gas was foreseeable. 

The Delaware Riverkeeper Network sent a letter to FERC asking it to formally rescind its May 18 order, claiming that FERC’s decision was contrary to the requirements of NEPA. This letter, along with similar letters from other environmental groups, are likely precursors to legal challenges to FERC’s interpretation of its obligations under NEPA. Notwithstanding the positions being advanced by these environmental groups, FERC continues to review and approve pipeline projects without requiring a detailed analysis of GHG emissions as evidenced by FERC’s May 31 approval of the Okeechobee Lateral Project.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

June 12, 2018 Environmental Groups Set Stage for Likely Legal Challenge to FERC GHG NEPA Review Policy

Siros By Steven M. Siros Image result for "natural gas pipeline"

On May 18, 2018, the Federal Energy Regulatory Commission (FERC) issued an order denying a rehearing request on FERC’s prior issuance of a certificate of public convenience and necessity for a natural gas pipeline project for Dominion Transmission. An environmental group had challenged that certificate, arguing in part that FERC failed to adequately consider the upstream and downstream impacts of the project. These upstream and downstream impacts, according to the environmental group, included greenhouse gas (GHG) emissions. FERC, on a party-line vote, concluded that the upstream and downstream GHG impacts of this particular project were not sufficiently causally connected to and/or the reasonable foreseeable effect of the project and therefore fell outside of the scope of the required NEPA analysis.  FERC distinguished its holding with the decision in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) by noting that in that case, the pipeline project was delivering natural gas to identifiable gas-fired electric generating plants and therefore the downstream use of the gas was foreseeable. 

The Delaware Riverkeeper Network sent a letter to FERC asking it to formally rescind its May 18 order, claiming that FERC’s decision was contrary to the requirements of NEPA. This letter, along with similar letters from other environmental groups, are likely precursors to legal challenges to FERC’s interpretation of its obligations under NEPA. Notwithstanding the positions being advanced by these environmental groups, FERC continues to review and approve pipeline projects without requiring a detailed analysis of GHG emissions as evidenced by FERC’s May 31 approval of the Okeechobee Lateral Project.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

June 7, 2018 White House Cites National Security Concerns as Administration Moves to Save Coal and Nuclear Power Plants

A combination of stagnant power consumption growth and the rise of natural gas and renewable power sources has resulted in the displacement and potential closure of many older coal and nuclear power plants in the United States. According to the U.S. Energy Information Administration, since 2008, coal and nuclear energy have seen a continuous decline in their percentage of the nation’s total energy generation market. And in 2015, the closure of coal fueled power plants accounted for more than 80% of the nation’s retired energy generating capacity.

In an attempt to reverse these trends, President Donald Trump has ordered Energy Secretary Rick Perry to take “immediate action” to stem the closure of nuclear and coal power plants. In an official White House statement issued on June 1, 2018, the Trump Administration stated that “keeping America's energy grid and infrastructure strong and secure protects our national security… Unfortunately, impending retirements of fuel-secure power facilities are leading to a rapid depletion of a critical part of our nation's energy mix, and impacting the resilience of our power grid.” 

The statement is not the first time the Administration has asserted that coal and nuclear plants are critical to national security. In January of this year, Mr. Perry presented a sweeping proposal to the Federal Energy Regulatory Commission (“FERC”), which requested subsidies for struggling coal and nuclear plants that were no longer able to operate profitably in the current energy markets. In presenting the proposal, Mr. Perry argued that coal and nuclear plants’ unique ability to store at least 90 days of fuel on-site made the energy sources critical to the reliability and stability of the United States’ energy markets. In a 5-0 decision, FERC rejected the Energy Secretary’s proposal, and casted doubt on Mr. Perry’s claims that energy markets would become vulnerable and unreliable without contributions from coal and nuclear power.

It appears the Trump Administration may now be seeking a more direct route to provide assistance to coal and nuclear power plants. According to Bloomberg, a draft memo from the Department of Energy (“DOE”) reveals that the agency is considering using its authority under Section 202(c) of the Federal Power Act and the Defense Production Act of 1950 to force regional grid operators to buy electricity from a list of coal and nuclear plants the department deems crucial to national security. The plan would require suppliers to purchase power from the plants for 24 months in order to starve off closures as the Administration works to provide a long-term solution. If the DOE plan is implemented, it is likely to face legal challenges from both utilities and environmental groups. Regardless of whether the DOE elects to pursue this strategy, it appears that the Trump Administration is focused on working to protect aging coal and nuclear plants.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Matthew G. Lawson

June 7, 2018 White House Cites National Security Concerns as Administration Moves to Save Coal and Nuclear Power Plants

A combination of stagnant power consumption growth and the rise of natural gas and renewable power sources has resulted in the displacement and potential closure of many older coal and nuclear power plants in the United States. According to the U.S. Energy Information Administration, since 2008, coal and nuclear energy have seen a continuous decline in their percentage of the nation’s total energy generation market. And in 2015, the closure of coal fueled power plants accounted for more than 80% of the nation’s retired energy generating capacity.

In an attempt to reverse these trends, President Donald Trump has ordered Energy Secretary Rick Perry to take “immediate action” to stem the closure of nuclear and coal power plants. In an official White House statement issued on June 1, 2018, the Trump Administration stated that “keeping America's energy grid and infrastructure strong and secure protects our national security… Unfortunately, impending retirements of fuel-secure power facilities are leading to a rapid depletion of a critical part of our nation's energy mix, and impacting the resilience of our power grid.” 

The statement is not the first time the Administration has asserted that coal and nuclear plants are critical to national security. In January of this year, Mr. Perry presented a sweeping proposal to the Federal Energy Regulatory Commission (“FERC”), which requested subsidies for struggling coal and nuclear plants that were no longer able to operate profitably in the current energy markets. In presenting the proposal, Mr. Perry argued that coal and nuclear plants’ unique ability to store at least 90 days of fuel on-site made the energy sources critical to the reliability and stability of the United States’ energy markets. In a 5-0 decision, FERC rejected the Energy Secretary’s proposal, and casted doubt on Mr. Perry’s claims that energy markets would become vulnerable and unreliable without contributions from coal and nuclear power.

It appears the Trump Administration may now be seeking a more direct route to provide assistance to coal and nuclear power plants. According to Bloomberg, a draft memo from the Department of Energy (“DOE”) reveals that the agency is considering using its authority under Section 202(c) of the Federal Power Act and the Defense Production Act of 1950 to force regional grid operators to buy electricity from a list of coal and nuclear plants the department deems crucial to national security. The plan would require suppliers to purchase power from the plants for 24 months in order to starve off closures as the Administration works to provide a long-term solution. If the DOE plan is implemented, it is likely to face legal challenges from both utilities and environmental groups. Regardless of whether the DOE elects to pursue this strategy, it appears that the Trump Administration is focused on working to protect aging coal and nuclear plants.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Matthew G. Lawson

April 17, 2018 CWA Regulation of Groundwater: Circuit Split or U.S. EPA Rulemaking?

Siros By Steven M. Siros   Discharge

Recent decisions from the Fourth and Ninth Circuitsfinding that the Clean Water Act (“CWA”) could regulate discharges into groundwater that ultimately migrate into navigable waterwaysmay prompt U.S. EPA to revisit its position that the CWA applies to discharges from a “point source via ground water that has a direct hydrologic connection to surface water.” On April 12, 2018, the Fourth Circuit concluded that a release from pipeline that impacted groundwater that ultimately discharged to a nearby creek could trigger liability under the CWA.  See Upstate Forever v. Kinder Morgan Energy Partners, L.P. (4th Cir. April 12, 2018). This decision follows on the heels of a Ninth Circuit decision affirming a district court's decision allowing a CWA citizen suit to proceed that alleged CWA violations associated with sanitary wastewater discharges through permitted underground injection wells that ultimately discharged into the ocean. See Hawai’i Wildlife Fund v. County of Maui (9th Cir. Feb. 1, 2018). Defendants are likely to seek Supreme Court review of both the Fourth and Ninth Circuit decisions.

Following the Ninth Circuit decision, on February 20, 2018, U.S. EPA issued a notice seeking comment by May 21, 2018 on whether it should review and potentially revise its previous positions on groundwater discharges; specifically, whether it is consistent with the CWA to subject discharges to jurisdictional surface waters via groundwater to CWA permitting. U.S. EPA also is seeking comment on whether some or all of such discharges are addressed adequately through other federal authorities, existing state statutory or regulatory programs, or through other existing federal regulations and permit programs. It will be interesting to see where U.S. EPA ultimately comes out on this issue; U.S. EPA filed an amicus brief urging the Ninth Circuit to affirm the district court's decision that discharges reaching navigable waters through groundwater are covered by the CWA. However, statements in U.S. EPA’s request for comments would seem to suggest that U.S. EPA is rethinking its position on this issue.  We will continue to follow and provide updates as this process unfolds. 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros