Energy and Environment Monitor

Carbon Capture and Storage Projects: Overcoming Transportation Barriers in West Virginia

June 17, 2024

The Need

Many new energy and hydrogen production projects propose to mitigate their potential climate impacts by removing carbon dioxide from air emissions and sequestering it by injection into geologic formations.[1]  The continued combustion of fossil fuel projects may also eventually depend on the availability of carbon capture and storage.  In May 2024, EPA issued new air rules that will require…

Ninth Circuit Rules Berkeley Gas Ban is Preempted by Federal Law but Acknowledges Limited Scope of Ruling

May 10, 2023

On April 17, 2023, the Ninth Circuit Court of appeals reversed and remanded the district court’s decision in California Restaurant Association v. City of Berkeley, deciding that the City of Berkeley’s prohibition on natural gas infrastructure in new buildings was preempted by Section 6297(c) of the Energy Policy and Conservation Act (EPCA).[1] The Court determined that Congress intended the scope…

Supreme Court Takes Away EPA’s Toys

July 7, 2022

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ [b]ut it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d) [of the Clean Air Act].

- West Virginia v. EPA, 597 U.S. __ (June 30, 2022).

Thus, a…

The Superfund Excise Tax Is Returning Soon for the Chemical Industry.

May 16, 2022

Chemical companies need to prepare for the return of an excise tax on chemicals produced or imported that hasn’t been in effect for nearly 30 years.  In January 2022, the IRS published Notice 2021-66, related to the Infrastructure Investment and Jobs Act (“IIJA”), which revives the excise taxes imposed on certain chemicals—previously known as the Superfund Chemicals taxes.  See https://www.irs.gov/…

Supreme Court Hears Argument on Scope of EPA’s Authority Over Power Plant Emissions

March 4, 2022

Introduction

On Monday, February 28, 2022, the Supreme Court heard a challenge to EPA’s authority to regulate CO2 emissions from coal-fired power plants.  The challenge was spearheaded by West Virginia’s Attorney General and his Solicitor General.  If the Court rules on the merits, it will determine whether EPA’s authority to limit CO2 emissions from coal-fired power plants is limited to regulating…

WV Passes Laws to Promote Solar Energy Development

April 19, 2021

West Virginia recently supported the solar industry by passing H.B. 3310 into law.  This law exempts the Public Service Commission from jurisdiction over power rates for retail customers entering into a power purchase agreement (PPA) for on-site solar facilities under certain circumstances.  This would allow more free enterprise for solar companies and purportedly increase the consumption of solar…

U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail

July 13, 2020

In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest. See U.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast…

Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction

April 2, 2020

A federal court in Virginia has ruled that a county’s attempt to impede an interstate gas pipeline with a floodplain ordinance is preempted by the federal Natural Gas Act. See Atlantic Coast Pipeline, LLC v. Nelson County Board of Supervisors, No. 3:18-00115 (W.D. Va. March 9, 2020).

The Atlantic Coast Pipeline (“ACP”) holds a certificate from FERC under the Natural Gas Act to construct and…

Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline

February 3, 2020

     The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act.  See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019).  There, both a trial and appeals court have ruled that a state’s waiver of its…

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…

Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts

September 13, 2019

In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…

No Uranium Mining in Virginia; Supreme Court Finds Mining Prohibition within State’s Power

July 2, 2019

Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June…