Energy and Environment Monitor

EPA to Reject Claims of Maryland and Delaware that Upwind Power Plants Have Inadequate NOx Controls

June 7, 2018

          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. 

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WVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is Unconstitutional

June 6, 2018

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…

"As We Know, Elections Have Consequences........"

May 29, 2018

          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…

"Generator Improvements Rule" Becomes Effective June 1, 2018 in West Virginia

May 21, 2018

     In 2016, EPA amended the requirements applicable to hazardous waste generators by promulgating the “Generator Improvements Rule.”  See https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvements.  Those requirements become effective in West Virginia on June 1,^, 2018.

Background

     The rules for hazardous waste generators were largely written in the 1980s.  In 2004, EPA…

Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA Coverage

May 17, 2018

“[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…

PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams Law

April 24, 2018

We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…

Bill Aimed at Eliminating “Chevron Deference” Passes Arizona Senate

April 12, 2018

    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…

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

October 12, 2017

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…

Trump’s EPA Proposes to Roll Back Clean Power Plan

October 11, 2017

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…

FERC Sidesteps New York’s Denial of CWA §401 Certification Giving Go-Ahead to Millennium Pipeline Company Spur

October 9, 2017

“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”)…

Update on Clean Power Plan Litigation

September 12, 2017

On September 7, 2017, the Environmental Protection Agency (“EPA”) filed a Status Report in the ongoing Clean Power Plan litigation (State of West Virginia v. EPA), which has been pending before the D.C. Circuit Court of Appeals for two years.

The Obama Administration first released a draft version of the “Clean Power Plan” rules for existing coal-fired electric generating plants in June of…

Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development

September 7, 2017

Opponents of natural gas development do not have the resources to challenge individual well permits in the Marcellus and related shale gas basins. Instead, they understand that the future of the industry depends on assembling the rights to draw gas from fractionated ownership and on the ability to attract higher prices by building transmission pipelines to carry the gas to new markets.  So, the…