Section 202(c) of the Federal Power Act [16 USC §824a(c)[1] allows the Department of Energy to determine that an emergency exists by reason of sudden increases in demand for electricity, a shortage of electric energy, of generation facility or of fuel; “or other causes.” After making that determination, DOE can require temporary connections with such generation as will best “meet the emergency…
EPA has proposed to deny petitions from Delaware and Maryland that sought to force controls on power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. The petitions claimed that NOx emissions from coal-fired plants in these states were significantly contributing, or would contribute in the future, to ozone levels in Delaware and Maryland that exceed allowable ambient levels.
We have previously written about a gas producer’s suit against WVDEP claiming that West Virginia’s “Flat Rate Statute” unconstitutionally impairs flat rate gas leases. In a flat rate lease, the producer pays a regular, often annual fee to the mineral owner rather than paying a royalty based on the amount of oil and gas that is produced. The history of flat rate leases in West Virginia is…
From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA…
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes…
Last week the Arizona State Senate passed a bill that would amend that state’s administrative procedure law to kill its version of the “Chevron” doctrine, which requires courts to defer to an agency’s reasonable interpretation of statutes within its purview.
The doctrine originates from the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set…
Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements.
The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through…
The U.S. Supreme Court decided a case on Monday of this week that environmental law nerds having been waiting breathlessly for since 2015. It concerns the EPA and Corps of Engineers rule promulgated that year defining the “waters of the United States” (‘WOTUS”). By that rule the agencies sought to delineate the geographic reach of those waters and the statutory programs which depend upon their…
On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue…
The Obama EPA finalized two rules in 2015 that comprised the Clean Power Plan (“CPP”). One established CO2 emission standards for new, modified and reconstructed power plans under Section 111(b) of the Clean Air Act. The second, and far more controversial, established CO2 emission “guidelines” under CAA §111(d) to be used by states in regulating existing power plants. As we have noted before, the…
“For any company desiring to construct a natural gas pipeline, all roads lead to FERC.” Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).
In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (“FERC”) granted approval for Millennium Pipeline Company L.L.C. (“Millennium”)…
