Energy and Environment Monitor

Federal Court in Oregon Rules that EPA Approval of State-Issued TMDLs Can Be an Affirmative Action Triggering Section 7 Consultation Under the Endangered Species Act

May 2, 2017

Section 7 of the Endangered Species Act (“ESA”) requires federal agencies which have undertaken “any action authorized, funded or carried out by such agency” to consult with the U.S. Fish & Wildlife Service to ensure that such action is not likely to jeopardize the continued existence of a protected species. See 16 U.S.C. § 1536(a)(2).  Likewise, USF&WS’s rules provide that each…

South Carolina Federal Court Upholds Distinction Between Point Source and Non-Point Source Pollution

April 25, 2017

On April 20, 2017, a South Carolina federal district court dismissed an environmental group’s Clean Water Act (“CWA”) citizen suit against Plantation Pipe Line Company, Inc. (“PPL”) and its parent company, Kinder Morgan Energy Partner, L.P.  PPL owns a 3,100 mile petroleum pipeline that leaked 369,000 gallons in December 2014.  The leak was repaired within a few days of…

Federal court in Pennsylvania Invalidates Township Ordinance Prohibiting Oil and Gas Waste Disposal

April 13, 2017

By opinion of March 31, 2017, the U.S. District Court for the Western District of Pennsylvania invalidated an ordinance adopted by Pennsylvania’s Grant Township.  The Township’s “Community Bill of Rights Ordinance” prohibited corporations from “engaging in the depositing of waste from oil and gas extraction” and invalidated any “permit, license, privilege, charter or other authority issued…

Maryland General Assembly Bans Fracking

April 6, 2017

Prior law in Maryland required its Department of the Environment to adopt a regulation by October 1, 2016 for the hydraulic fracturing of wells for exploration or production of natural gas, but provided they would not become effective until October 1, 2017. Further, the Department was prohibited from issuing fracking permits until October 2017.

A new bill passed by both the House and Senate of the…

COLORADO COURT’S SELECTIVE USE OF STATUTORY CONSTRUCTION PRINCIPLES TILTS OIL AND GAS DEVELOPMENT CASE IN YOUTH ENVIRONMENTALISTS’ FAVOR

April 4, 2017

On March 23, 2017, the Colorado Court of Appeals issued a decision that has the potential to make future oil and gas development in the State very difficult, if not impossible. See Martinez v. Colorado Oil & Gas Conservation Comm., No. 16-CA-0564, Opinion. In what is becoming something of a trend of activist groups bringing legal actions purportedly on behalf of minors (see also …

EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas Industry

March 16, 2017

On November 10, 2016, EPA issued Information Collection Request requiring oil and natural gas companies to provide extensive information that EPA desired to develop regulations for reducing methane emissions from existing oil and gas sources.

The information request was sent to more than 15,000 owners and operators in the oil and gas industry. The request was comprised of two parts:  An…

OSM Announces Increase in Civil Penalties – But Not Where It Will Matter

February 13, 2017

Bad news: OSM announced an increase in the amount of civil penalties it will impose for two categories of violations. The first is a daily penalty for continuing violations which remain unabated, and the second for the maximum amount for an individual civil penalty. Good news: the increase will not apply in states which directly regulate mining, meaning most states where coal is actually mined.…

Outgoing FERC Commissioner Urges Commission to Broaden Analysis of Need for and Effect of Pipelines: Effect May Be to Increase Direct Action by Pipeline Opponents

February 8, 2017

Norman Bay’s tenure as Chairman and a member of the Federal Energy Regulatory Commission ended with his resignation effective February 3. He resigned after President Trump appointed another member of FERC to serve as chairman. The resignation leaves the Commission, which is authorized to have 5 members, with only 2 members; one short of a quorum.

In one of Bays’ last acts, he voted with the other…

Regulating for a Desert

February 7, 2017

        I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the…

How the Congressional Review Act (CRA) Allows Congress to Undo Executive Branch Regulations

January 26, 2017

The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president.  Thus, while Congress voted to disapprove several rules under the Obama administration,…

Monkey Wrenches on the Way: Anti-Pipeline Group from the Midwest Wants in on the Appalachian Action

January 26, 2017

According to a recent publication by Inside Climate News, a group claiming to have played  a pivotal role in the efforts to block the Keystone XL Pipeline, is here to help wage war against the Atlantic Coast and Mountain Valley Pipelines. A group known as Bold Alliance bills itself as a network of “small and mighty” groups in rural states (Nebraska, Iowa, Louisiana and Oklahoma), which…

Deciding Who Will Decide

January 18, 2017

The controversy over EPA’s definition of “waters of the United States” (WOTUS) took another meander on January 13. United States Supreme Court surprised many by granting a petition for certiorari to decide which court – the federal district or circuit courts – have the authority to adjudicate disputes over a regulation defining a key term of the Clean Water Act (CWA). Ever since EPA and the Corps…