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…
On April 17, 2015, the Environmental Protection Agency promulgated a rule establishing national minimum criteria for existing and new coal combustion residuals (CCR), landfills, and existing and new CCR surface impoundments.
The rule was challenged by both anti-coal groups and industry. In 2018, the D.C. Circuit Court addressed these challenges primarily in favor of the anti-coal groups in Utility…
The Natural Gas Act gives FERC-regulated projects the right to condemn private property. In 2019, the Third Circuit ruled that those rights did not extend to property held by a state because states enjoy sovereign immunity from such suits. The federal district court in Maryland followed suit, blocking efforts by Columbia Gas to install a short transmission line under a state-owned bike trail…
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. Seehttps://www.irs.gov/…
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…
Indiana Governor Eric Holcomb signed into law Senate Enrolled Act 389, which dramatically alters Indiana’s regulatory approach to wetlands and other environmental issues. The bill faced strong opposition from environmental organizations, hunting groups, and other wildlife advocates. The full Senate Bill 389 can be found here.
Following SB 389, the state will no longer regulate Class I wetlands and…
In January, the Corps of Engineers reissued 12 existing Nationwide §404 permits (“NWPs”) and issued 4 new ones. As part of this effort, the Corps split NWP 12 (formerly for all utility lines) into three new NWPs: 12 (oil or natural gas pipelines); 57 (electric utility lines and telecommunications) and 58 (utility line activities for water and other substances). These 16 NWPs took effect on March…
Earlier this year, OVEC and other anti-mining groups sued the WVDEP, claiming the agency had failed to provide notice to OSM that the State’s surface mining reclamation program had suffered “a significant change in funding or budgeting.” The WVDEP moved to dismiss the Complaint claiming that: 1) the plaintiffs lacked standing because there had been no failure of the bonding system; 2) plaintiffs…
The Migratory Bird Treaty Act (MBTA) makes it a misdemeanor, “unless permitted by regulations” to “pursue, hunt, take, capture, [or] kill” migratory birds “by any means or in any manner.” 16 U.S.C. Section 703(a). For years, the Interior Department interpreted the Act as prohibiting so-called “incidental takes” - deaths of birds by activities undertaken for other purposes, such as construction of…
Three anti-mining organizations - Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club (collectively “Plaintiffs”) - sued the West Virginia Department of Environmental Protection (“WVDEP”) for failing to notify the federal Office of Surface Mining (“OSM”) of a significant change in funding or budgeting concerning WVDEP’s ability to manage its…
On April 15, 2020, a federal district court in the District of Montana vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (“NWP 12”), which was issued in 2017 pursuant to Section 404 of the Clean Water Act and authorizes discharges of dredged or fill material associated with utility line activities. The Court also issued an injunction preventing the Corps from authorizing further use…
In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it…
