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…
The United States Fish and Wildlife Service (“USFWS”) has issued two public notices recently concerning species of interest in Central Appalachia:
First, is the proposalto list “West Virginia spring salamander” as endangered:
By federal register notice of December 20, 2023, the USFWS proposed to list this salamander as endangered and to designate critical habitat for its protection.
Produced water is a byproduct generated during hydraulic fracturing, or “fracking.” During the fracking process, the extracting party fractures bed rock by injecting water into the subsurface at a high pressure to extract oil and natural gas. Upon completion, a slurry byproduct remains known as “produced water.” Originally seen as a waste product with limited uses, the extracting party typically…
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 United States Supreme Court is being asked by a South Carolina farm to clarify whether the Clean Water Act’s (“CWA”) diligent prosecution bar precludes a federal enforcement action related to its alleged failure to get stormwater permits required by law whether the state enforcement agency had already begun the process of administrative enforcement.
“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).
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…
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…
