The Supreme Court has agreed to hear a case that could have far-ranging implications for agency proclamations that impact the business community. On Monday, June 16, 2014, the Supreme Court granted certiorari in Nickols v. Mortgage Bankers Assoc., No. 13-1052. The Supreme Court will address “[w]hether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.” (more…)
WE KNOW ENERGY®
Supreme Court to Determine Whether Agencies Must Undergo Notice and Comment Prior to Changing an InterpretationMonday, June 16, 2014 2:07 pm by Grant MacIntyre and Kevin Ewing
Bracewell & Giuliani
On June 4, Bracewell partner Jason Hutt was interviewed on Nightly Business Report by NBC’s Jackie DeAngelis about the role of government support in the growth of the solar power industry. Click here to view the Nightly Business Report clip.
Jeff Holmstead, Richard Alonso, Jason Hutt and Grant MacIntyre
On June 2, 2014, EPA issued a proposed rule to control carbon dioxide emissions from existing coal-fired power plants. In its public outreach, EPA presents the rule as requiring a 30% reduction in carbon emissions by 2030 from the baseline year 2005. It is true that the rule would result in CO2 emissions that are 30% lower than in 2005, but the actual state-by-state emission reduction requirements are based on a 2012 baseline, which may disadvantage certain states or companies that made significant CO2 reductions before that year. The proposal establishes GHG emission targets for each State (except the District of Columbia and Vermont, which do not have any coal-fired power plants), and the targets represent very different levels of emission reduction in different states based on what EPA believes is economically feasible in each state. (more…)
Sandra Snyder, Richard Alonso and Grant MacIntyre
EPA suffered a major loss on May 30 when the D.C. Circuit refused to uphold EPA’s attempt to narrow the ruling in the Summit aggregation case to only the states in the 6th Cir. Reversing more than 20 years of EPA practice, the Summit case directed EPA to refrain from using interdependency or the functional interrelatedness of various sources when making a determination regarding whether to aggregate the emissions from those sources for NSR and Title V permitting purposes.
In December 2012 after the Summit decision was final, EPA issued a memo that said the Agency would only apply the Sixth Circuit’s Summit decision in the states of Kentucky, Tennessee, Ohio, and Michigan. The memo was challenged by an industry trade association, the National Environmental Development Association (NEDA). (more…)
A surprise awaits those who reach page 334 of the 559-page preamble to EPA’s final cooling-water-intake rule – a potentially significant expansion of the Endangered Species Act.
The rule, which EPA has not yet officially published, is intended to protect aquatic species affected by cooling water intake at power plants and other large facilities. It is the result of a lawsuit by environmental groups, settled by EPA, and delayed on several occasions. Most recently, the rule was hung up as a result of concerns voiced by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) about whether the final rule would do enough to protect threatened and endangered species. EPA thought it would; the Services disagreed. The Services’ concerns eventually caused EPA to miss a court-ordered deadline to publish the final rule. (more…)
Michael Weller and Heather Palmer
The U.S. Environmental Protection Agency (EPA) has taken its first official step toward creating a federal regulatory program that would require disclosure and reporting concerning chemicals used in the hydraulic fracturing process. On May 9, 2014, EPA released an Advanced Notice of Proposed Rulemaking (ANPR) under the Toxic Substances Control Act (TSCA) that seeks public comment on the types of information that should be reported or disclosed for hydraulic fracturing substances or mixtures and the mechanism for obtaining this information.
While the ANPR is directed to the public in general, companies in the oil and gas industry, particularly those that manufacture, import, process or distribute chemical substances used in hydraulic fracturing treatments, should take note. (more…)