In the latest listing driven by a huge July 2011 settlement with environmental NGOs, the U.S. Fish and Wildlife Service earlier today announced it would list the Gunnison sage-grouse as threatened under the Endangered Species Act (ESA). The listing comes in the face of objections from both sides. Colorado’s Governor and both its senators – all Democrats – had worked hard to prevent the listing, while environmentalists warned in advance that they would sue over a threatened listing, demanding that the bird be listed as endangered, not just threatened. (more…)
WE KNOW ENERGY®
Lowell Rothschild and Eric Washburn
Martin Stewart-Smith and Paul Jones
The majority of landlocked Uganda’s estimated 6.5 billion barrels of crude oil reserves are destined to be pumped to the East African coast for export (potentially linking up with supplies from Kenya, South Sudan and Ethiopia along the way). While preferred export routes continue to be debated, it is likely that multiple pipelines stretching across the East Africa region will be developed in the near future. The development of such infrastructure will be heavily dependent on project finance. In this article, we consider some key issues affecting international pipeline projects that sponsors and host governments in the East Africa region will encounter. (more…)
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…)
Lowell Rothschild and Kevin Ewing
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…)
Richard Alonso, Jeff Holmstead, Tim Wilkins and Sandra Snyder
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…)
Michael Weller and Heather Palmer
Spurred by several recent industrial incidents, both onshore and offshore, the U.S. Environmental Protection Agency has announced several potential revisions to its Clean Air Act Risk Management Program (RMP) regulations. The RMP program Request for Information (2014 RMP RFI) contemplates a vast array of changes that could, on the one hand, increase the number of sources regulated, e.g., the addition of ammonium nitrate as a regulated substance; and on the other, increase the costs of those sources currently regulated, e.g., mandatory third-party audits, installation of automated detection and monitoring systems.
Other proposed changes could be controversial or simply difficult for sources to integrate, e.g., mandatory root cause investigations, siting requirements, mandatory disclosure of chemicals and accident history for the facility. At this time, EPA indicates that it is not committed to undertaking a rulemaking and that it is engaged only in information gathering to assess whether changes to the RMP are necessary. Comments on the RFI must be received by October 29, 2014. (more…)