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  1. Prove It Up: Texas Railroad Commission Revises Rule for Pipeline Common Carrier Permits

    Wednesday, December 10, 2014 9:15 am by and

    The Texas Railroad Commission has recently promulgated certain rule amendments designed to clarify how much information a pipeline operator must file to be classified, for TRRC regulation purposes, as a common carrier or a private pipeline.

    The revisions require pipeline operators to substantiate their claim to be a common carrier or private pipeline when applying for a permit.  Currently, the permit application, known as a T-4, requires the pipeline applicant only to “mark [the] appropriate block” to establish its classification as a common carrier or private pipeline.  The revised rule, however, will add new informational requirements and certifications that a pipeline operator must submit.  Specifically, for a new application the applicant must provide a sworn statement providing the operator’s factual basis supporting the classification and purpose being sought for the pipeline, including an attestation to the applicant’s knowledge of the eminent domain provisions in the Texas code.  In addition, the applicant must provide documentation supporting the classification and purpose being sought.  (more…)


  2. Sackett Two Years Later: Wetland Jurisdictional Determinations Still Not Appealable

    Thursday, September 25, 2014 10:35 am by

    When the U.S. Supreme Court decided in Sackett v. EPA that Environmental Protection Agency (EPA) wetland compliance orders were appealable, one question was how far would other courts extend the Supreme Court’s reasoning? Two years later, the answer is becoming clear on at least one front: courts continue to hold that wetland jurisdictional determinations are not appealable.  In Belle Company v. U.S. Army Corps of Engineers, the Fifth Circuit was the latest court to say so. (more…)


  3. Courts Affirm Limits on Scope of Environmental Review

    Friday, August 22, 2014 10:46 am by and

    Ruling on a pipeline project and a mine project, two different federal courts issued decisions Monday affirming limits on the scope of environmental review.  The pipeline case was a challenge to Enbridge’s Flanagan South pipeline, designed to transport tar sands crude from Illinois to Oklahoma.  The mine case involved Raven Crest Contracting’s Boone North No. 5 coal mine in West Virginia.  Neither decision breaks new ground; their significance lies in reaffirming that NEPA analysis should be confined to the scope of the federal agencies’ control over the project in question.  These cases encourage federal agencies to fend off demands for broader consideration of social and political issues surrounding major infrastructure projects. (more…)


  4. 9th Circuit Appeals Court: Clean Air Act Permits Must Address Latest EPA Requirements

    Wednesday, August 13, 2014 2:58 pm by , , and

    On August 12, 2014, the 9th Circuit Court of Appeals overturned a Prevention of Significant Deterioration (PSD) permit issued under the Clean Air Act (CAA) by EPA to the Avenal Power Center.  Sierra Club v. EPA, No. 11-73342 (9th Cir. Aug. 12, 2014).  The PSD permit authorized the construction of a 600 MW natural gas-fired plant located in California’s San Joaquin Valley.  The plant was required to install state-of-the-art pollution controls for all traditionally regulated pollutants, such as nitrogen oxides, particulate matter, and carbon monoxide.  The Court vacated the PSD permit because it found it was improper for EPA to issue a PSD permit that did not address new CAA requirements that were promulgated by EPA after the application was submitted.

    Although EPA has the authority to grandfather pending applications, it must exercise that authority through regulation by setting an effective date for the new regulation which would make the regulation applicable to permit applications submitted after a given date.  When EPA does not address grandfathering in its regulations, the court stated that all PSD permits that are not final prior to the effective date of the new rule must be revised to address any new regulatory requirement, even if the permit had already been through the public comment process.  The Court implied that any new assessment would likely need to go through a separate public comment process.  (more…)


  5. Battles Continue Over Local Bans on Hydraulic Fracturing

    Monday, July 28, 2014 10:44 am by

    In towns across America, hydraulic fracturing continues to be a hot-button issue, with municipalities in at least twelve states adopting measures to ban hydraulic fracturing altogether on a temporary or permanent basis.  Recent developments in Texas, California, and Colorado demonstrate that battles continue over local bans on hydraulic fracturing. (more…)


  6. Environmental Regulations Impacting the Energy Industry – Summer 2014

    Friday, June 20, 2014 11:06 am by


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