Energy and Environment Monitor

Supreme Court Refuses to Hear Case Challenging EPA's Failure to Study Employment Effects of Clean Power Plan

January 10, 2018

        On Monday, the U.S. Supreme Court declined to hear an appeal filed by Murray Energy Corp. that challenged the decision of the U.S. Court of Appeals for the Fourth Circuit that the Clean Air Act does not authorize lawsuits against the U.S. Environmental Protection Agency for its failure to consider employment impacts of administering or enforcing the Act.

        In 2015, Murray Energy sued EPA in…

An Unexpected Present

January 3, 2018

            One of the pleasures of the Christmas season is the giving and receiving of gifts. The pleasure is particularly enhanced when the gift is unexpected, or when it has a unique value to its recipient. By these measures, the U.S. District Court in Lexington, Kentucky delivered a wonderful present in a decision issued on December 28.

            The case, Kentucky Waterways Alliance, et al., v. Kentucky…

Sixth Circuit stays NEXUS pipeline construction in Green, Ohio pending review of Ohio EPA’s CWA §401 certification

December 19, 2017

    On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401…

CRISIS MANAGEMENT: ARE YOU READY?

December 14, 2017

“Everybody has a plan . . . until they get punched in the face.” Mike Tyson.

In his prime, Mike Tyson created a crisis for opposing fighters. Many claimed to have a plan for dealing with Iron Mike, but the plan didn’t hold up under pressure.  And Mike knew it.

Planning for a crisis is difficult, but necessary. Crises by their very nature are unexpected, so you cannot plan a detailed response in…

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”)…

Normally, It’s Best to Present Your Case Before the Penalties Are Imposed

September 22, 2017

The U.S. District Court in Springfield, Illinois issued an opinion yesterday that caught my eye. It was unusual for two reasons. First, it presented a citizens’ suit claim under the Resource Conservation and Recovery Act (RCRA) brought by two companies. RCRA citizen’s suits are rare; suits brought by businesses are almost unheard of. Second, the companies sued the Illinois EPA, and the court…

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…

One Project, Many Lawsuits

September 6, 2017

On August 23^rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…

Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline

August 31, 2017

On August 23, the Third Circuit Court of Appeals affirmed the Corps’ decision to issue a Clean Water Act § 404 “fill” permit to a pipeline developer for 13 miles of pipeline in Pennsylvania. See Delaware River Network v. U.S. Army Corps of Engineers, No. 17-1506 (3rd Cir. Aug. 23, 2017).  The Riverkeeper’s challenge was an original action filed in the 3rd Circuit pursuant to the…