Renewable Energy Update

How the Congressional Review Act (CRA) Allows Congress to Undo Executive Branch Regulations

January 26, 2017

The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president.  Thus, while Congress voted to disapprove several rules under the Obama administration,…

Federal Judge Tells EPA It's Time to Obey the Law

January 13, 2017

As we have previously reported, Murray Energy is pursuing an action against EPA in federal court in in the Northern District of West Virginia arguing that EPA failed to discharge an obligation under Section 321(a) of the Clean Air Act to evaluate the job impacts of its Clean Air Act rules.

After rejecting numerous attempts by EPA to limit discovery, the district court (Judge Bailey) granted…

THE MSHA WISH LIST FOR THE NEW SECRETARY OF LABOR

January 10, 2017

Happy New Year! The Federal Mine Safety and Health Administration (“MSHA”) has been busy clearing out any lingering rulemaking or policy decisions before the end of the current Administration.

For the new MSHA Administration, here is our wish list of priorities:

• Fill the vacancy on the Commission with a view towards establishing a check on the power and authority of MSHA.
• Stop regulating through…

IT’S THE GIVING SEASON: OBAMA ADMINISTRATION LEAVES PARTING GIFTS FOR THE COAL INDUSTRY

January 5, 2017

Obamanation: 8 Years Later, OSM Finalizes Stream Protection Rule   

The United States Office of Surface Mining (“OSM”) has finalized its “Stream Protection Rule (“SPR”) (12/20/16). This was formerly known as the “buffer zone rule” and dates to the early 1980s. OSM adopted it originally as a means of keeping sediment out of streams. It prohibited land disturbance within 100…

AFTER THE ELECTION: WHAT COAL NEEDS MOST

November 28, 2016

My colleagues and I have the privilege of working with coal operators every day in the places where coal is mined in this country. From coal basins in Appalachia to Illinois to the Powder River Basin, we have had the pleasure of helping those who mine the coal that powers our homes and makes our steel.

In recent years, the challenges have been numerous, to put it mildly. Undoubtedly, many of those…

Fourth Circuit Rejects Sierra Club’s Health Claims in Mining Permit Appeal

July 14, 2016

The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.

On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…

Do You Have a Permit for that Reclaimed Valley Fill? The Sierra Club Says You Need One

July 7, 2016

During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading.  In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.

Typically, the valley fill material is…

Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot

June 23, 2016

In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc.  The two mines at issue were the primary fuel suppliers for a power plant.  The court ruled that OSM had improperly failed to solicit public comment on its…

Oral Arguments in Clean Power Plan Challenge Moved to September

May 18, 2016

Challenges to EPA’s Clean Power Plan are pending in the Circuit Court for the District of Columbia.  Oral argument on those challenges had been scheduled for June 2, 2016.  On May 16, though, on its own motion, the D.C. Circuit moved the oral argument date from June until September 27.  In addition, the case will no longer be heard before the original three-judge panel assigned to it, but…

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…

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…

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…