Renewable Energy Update

Fish and Wildlife Service Puts Two Crayfish on Threatened and Endangered Species List. Action Will Affect Projects in the Guyandotte Rivershed of West Virginia and the Big Sandy Watershed of Virginia, Kentucky and West Virginia.

April 20, 2016

By Federal Register notice of April 7, 2016, the U.S. Fish & Wildlife Service (“USF&WS” or “Service”) determined that the Big Sandy crayfish is threatened and the Guyandotte River crayfish is endangered.  The USF&WS originally proposed the listings on April 7, 2015 (80 FR 18710).  See also “Fish and Wildlife Service Lists Snuffbox and Rayed Bean Mussels to Endangered Species List; Faces Lawsuit…

U.S. Supreme Court Stays Clean Power Plan Rule for Existing Coal Plants

February 10, 2016

The Obama Administration finalized the “Clean Power Plan” rule for existing coal-fired electric generating plants on October 23, 2015.  80 FR 64662 (Oct. 23, 2015).  The rule creates a CO₂ budget for states that cannot be met by existing coal-fired units.  Instead, the rule depends on widespread “trading” by which states can meet their budgets only if coal-fired units are not…

EPA Tries to Block Murray Energy's Deposition of Gina McCarthy

November 16, 2015

We have previously written about Murray Energy’s lawsuit against EPA in the Northern District of West Virginia.  There, Murray Energy claims that EPA has failed to conduct studies required by Section 321 of the Clean Air Act about the effects of its rules and enforcement actions on jobs.  The Court has permitted Murray Energy to conduct discovery, holding dispositive motions by EPA in abeyance…

U.S. Fish and Wildlife Service Takes Action on Petitions to List Kentucky Arrow Darter and Cumberland Arrow Darter as Endangered or Threatened Species

October 21, 2015

The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act.  It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species.

Cumberland…

EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review Documents

July 27, 2015

We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia.  There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. 

Recently, the District…

Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth Circuits

July 22, 2015

The Sierra Club and its local partners previously petitioned EPA to withdraw its approval of the NPDES programs in at least Kentucky, Virginia and West Virginia, largely over alleged deficiencies by the state agencies in handling coal-related permits.  Earlier this year, when EPA did not formally respond to the petitions, the Sierra Club sued EPA in federal courts in Kentucky and West Virginia.  

In…

EPA’s Mercury and Air Toxics Standards (MATS) in Limbo After Supreme Court Decision

July 2, 2015

On Monday, in an opinion written by Justice Antonin Scalia, the U.S. Supreme Court ruled that the Environmental Protection Agency “strayed far beyond [the] bounds” of reasonableness by not considering costs in its decision to regulate emissions of hazardous air pollutants from fossil fuel-fired power plants. The case, Michigan vs. EPA, was decided 5-4, with Justices Scalia, Roberts, Kennedy,…

Mingo Logan Appeals Adverse District Court Decision on § 404 Permit “Veto” - Again

June 18, 2015

Mingo Logan Coal Company obtained a Clean Water Act § 404 permit from the Corps of Engineers in January 2007.  The permit authorized fills associated with the Spruce Mine in Logan County, West Virginia.  In January 2011, USEPA exercised its authority under CWA § 404(c) and “vetoed” the permit.  Mingo Logan challenged the veto in the D.C. District Court, claiming both…

EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy

June 17, 2015

We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia.  There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. 

Recently, the District…

Board Affirms Certification Revocation for Water Lab in WV

March 27, 2015

By order dated March 11, 2015, the West Virginia Environmental Quality Board (“EQB”) affirmed an earlier order by WVDEP revoking a laboratory certification granted to Appalachian Laboratories (“AppLabs”).  WVDEP issued the order on October 16, 2014 in response to press accounts that a former employee of AppLabs (John Shelton) had pleaded guilty to diluting or falsifying water samples…

EPA Moves to Dismiss Sierra Club Efforts to Rescind State NPDES Programs

March 27, 2015

The Sierra Club and its local partners previously petitioned EPA to withdraw its approval of the NPDES programs in at least Kentucky, Virginia and West Virginia—largely over alleged deficiencies by the state agencies in handling coal-related permits.  Earlier this year, when EPA did not formally respond to the petitions, the Sierra Club sued EPA in federal courts in Kentucky and West…