Energy and Environment Monitor

Coal Ash Rule: Rule Opponents Seek Immediate Closure of Existing Unlined Facilities

February 17, 2019

We have written about EPA’s Coal Ash rule before: EPA Will Not Regulate Coal Ash as Hazardous Waste, but Restrictions Nonetheless Apply: Coal Mine Disposal Unaffected; Utility Groups Ask EPA to Modify Coal Ash Rule and to Extend Compliance Deadlines; and EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal.

In 2015, EPA issued its Coal Ash rule. 80 Fed. Reg. 21,302…

House Delegates Introduce Environmental Constitutional Amendment

February 13, 2019

          On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.”  The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:

ARTICLE III. BILL OF RIGHTS.

§23. Natural Resources and the Public Estate.

The people have a right to…

A Christmas Present for All Who Use the Land

January 8, 2019

          The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11.  The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law.  The new definition will “encompass relatively permanent flowing and…

District Court Pauses Kids' Climate Suit for Interlocutory Appeal

November 29, 2018

On November 21, 2018, the United States District Court for the District of Oregon stayed a climate change suit in order to allow for an interlocutory appeal to the Ninth Circuit Court of Appeals.   An interlocutory appeal is an appeal of a specific ruling by a trial court that is made before the trial itself has actually concluded.  The District Court’s order concerns a suit filed against the…

The Promise and Perils of Clean Water Act Litigation

November 26, 2018

            On November 14^th, a federal district court dismissed a lawsuit filed by environmental groups against the owners of the Vermillion power plant, a retired coal-fired facility on the banks of the Middle Fork in Vermillion County, Illinois.  Metals from coal ash were leaching from three unlined ponds into groundwater that flows to the Middle Fork, which happens to be both a federally and state…

DO I HAVE A POINT SOURCE?

November 19, 2018

The Answer Depends on the Jurisdiction

Let’s say you have an unlined pond.  It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit.  But, let’s assume that pollutants in the pond percolate into groundwater.  And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream. 

Does your pond…

U.S. Supreme Court Allows Kids' Climate Trial to Proceed

November 13, 2018

We have written before about this case where a group of children have sued the United States Government for its failure to protect them from the effects of climate change.  October 30, 2018.  In prior rulings, a federal district court judge in Oregon has rebuffed efforts by the United States to dismiss the case on the grounds that it presents non-justiciable “political” questions rather than…

U.S. Supreme Court Stays Kids' Climate Suit

October 29, 2018

On October 19, 2018, the United State Supreme Court temporarily stayed a suit filed against the President and various executive agencies brought by 21 minors, an organization known as Earth Guardians, and “future generations” by and through their self-appointed guardian, Dr. James Hansen, who is a well-known climate scientist and climate change activist.  See In Re United States of America, et…

EPA Proposes to Reconsider New Source Performance Standards for Oil & Gas Emissions

October 24, 2018

In 2016, EPA finalized new source performance standards for emissions of greenhouse gases in the form of limitations on methane and volatile organic compounds (“VOC”) from the oil and natural gas sector. We have written about that rule before: “Obama Announces New Rules on Oil & Gas Industry’s Methane Emissions,” “EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas…

Federal District Court Enjoins WOTUS Rule in Three More States

September 19, 2018

          Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied…

EPA Puts Affordable Clean Energy Rules Out for Public Comment

September 10, 2018

On August 21, 2018, the U.S. Environmental Protection Agency (“EPA”) proposed the Affordable Clean Energy rule (“ACE”) as a replacement for the Obama Administration’s controversial 2015 Clean Power Plan (“CPP”), which EPA proposed to repeal because it exceeded the agency’s authority. On August 31, 2018, EPA officially published the proposed rule for public comment. See Fed. 83 Reg. 44746 (Aug. 31,…

Federal Court Rules that a West Virginia County Cannot Deny a Request to Re-Zone Property to Allow for Construction of a Natural Gas Compressor Station

August 29, 2018

          A federal district court in West Virginia ruled on Wednesday that Fayette County’s zoning code is preempted by the Natural Gas Act as it applies to Mountain Valley Pipeline’s FERC-approved activities in connection with a compressor station to be constructed in that county. See Mountain Valley Pipeline, LLC v. Wender, et al., No. 2:17-cv-4377 (S.D.W.Va. Aug. 29, 2018), ECF No. 34. MVP obtained a…