Friday, August 16, 2013 11:09 am by Sandra Snyder
August has been a busy month for issues related to the Renewable Fuels Standard (“RFS”).
On August 6, EPA denied the petitions for reconsideration filed by the American Petroleum Institute (“API”) and the American Fuel & Petrochemical Manufacturers (“AFPM”) regarding the 2013 Biomass-Based Diesel Renewable Fuel Volume. EPA sent a letter to AFPM and another to API before publishing notice of this decision in the Federal Register on August 14. As EPA’s technical response memo explains, EPA believes that there is no need to reconsider the applicable volume of biomass-based diesel for 2013 because the issues raised by API and AFPM could have been raised during the comment period and the issues raised do not provide substantial support for revising the standard. In particular, EPA explained that there is no statutory prohibition to increasing the biomass-based diesel requirement over the 1.0 billion gallon standard even that will result in higher prices. EPA disregarded two other arguments by explaining that when the Agency set the 2013 standard, it was aware of and considered both the 2012 drought and the RIN fraud issue. (more…)
Category: Air Quality/Climate Change, Courts, Environmental, National Energy Law, Renewable Energy/Cleantech
Wednesday, August 14, 2013 11:07 am by Sandra Snyder
On August 5, 2013, EPA released a prepublication copy of amendments to the oil and gas new source performance standards, 40 C.F.R. Part 60 (“the oil and gas NSPS”). The amendments primarily modify the requirements pertaining to volatile organic compound (“VOC”) emissions from storage tanks. EPA modified these requirements to respond to issues raised in petitions for reconsideration of the 2012 oil and gas NSPS, published in 77 Fed. Reg. 49,490 (Aug. 16, 2012). Interested parties may challenge these new requirements by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of publication of the rule in the Federal Register.
The amendments clarify that the oil and gas NSPS applies to vessels at affected facilities – meaning those vessels that hold crude oil, condensate, hydrocarbon intermediates or produced water and that have a potential to emit (“PTE”) emissions of 6 tons per year or more of VOCs. Only tanks of a certain age must comply with the oil and gas NSPS. (more…)
Category: Courts, Environmental, EPAct 2005, Natural Gas/LNG
Monday, August 12, 2013 8:12 am by David Poe and Lowell Rothschild
Early Friday evening, President Obama signed into law two bills which aim to speed the licensing and environmental approval of low-impact hydropower projects. One bill is focused on projects under 5 megawatts constructed in manmade conduits - tunnels, canals, pipelines, aqueducts, flumes, ditches, or similar water conveyances – operated for the distribution of water for agricultural, municipal, or industrial consumption. These facilities no longer require FERC licensing, and therefore should be able to move forward much more expeditiously. Another provision allows slightly larger facilities – those with a capacity up to 10 kilowatts – to also be exempted from FERC licensing requirements by FERC Rule or Order. The last major provision of this bill requires FERC to examine the potential of issuing in only 2 years (including prefiling) all future licenses for hydropower development at nonpowered dams and closed loop pumped storage projects. The bill authorizes pilot projects and workshops to assist in the development of such a two-year process. The second bill stresses the need for streamlining the environmental review (essentially NEPA) process, ordering the Bureau of Reclamation to categorically exclude from the NEPA process such small conduit projects. (more…)
Category: Environmental, FERC, National Energy Law, Power, Renewable Energy/Cleantech
Wednesday, August 7, 2013 4:39 pm by Sandra Snyder
On August 6, 2013, EPA issued a prepublication copy of the final rule establishing the 2013 annual percentage standards for the Renewable Fuels Standard (RFS) program for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. Under the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, EPA must promulgate regulations to ensure that an increasing amount of the transportation fuel sold in the U.S. contains renewable fuel.
To achieve this goal, EPA is required to annually set the renewable fuel standards for the following year by no later than November 30. 42 U.S.C. § 7545(o)(3)(B). EPA did not meet this deadline in 2012 and instead published the notice of proposed rulemaking (NPR) in the Federal Register on February 7, 2013. See 78 Fed. Reg. 9,282 (Feb. 7, 2013). Despite missing the November 30, 2012 deadline, EPA claims in this final rule that the agency still has authority to issue a 2013 standard because the Clean Air Act does not specify a consequence for missing the deadline. The United States Court of Appeals for the District of Columbia has previously concurred with this position. See NPRM v. EPA, 630 F.3d 145, 152-58 (2010). (more…)
Category: Courts, Environmental, EPAct 2005, Renewable Energy/Cleantech
Friday, July 26, 2013 2:15 pm by Sandra Snyder
Nine companies were issued fines by the California Air Resources Board (ARB) for violating the State of California’s Mandatory Greenhouse Gas Reporting rule. The ARB adopted the reporting rule in 2007. Under the rule, sources that emit more than 10,000 metric tons of carbon dioxide equivalent per year must annually report their greenhouse gas emissions for the prior year to the ARB. Reporting began in 2008 with approximately 600 facilities reporting their emissions. (more…)
Category: Air Quality/Climate Change, Enforcement, Environmental, Regional Energy Law, Renewable Energy/Cleantech, Upstream Energy
Tuesday, July 16, 2013 9:10 am by Sandra Snyder
In response to a request made by Senator David Vitter, EPA has made several concessions to address concerns about agency transparency. In particular, industry has had concerns about the recent increase of so-called “sue and settle” cases. Under the sue and settle process, advocacy groups sue EPA to issue a regulation. During closed-door settlement discussions, the advocacy group and EPA agree to a timeline and the content of a new rule. After an agreement has been struck, it is difficult for the public to persuade EPA to modify the terms of the settlement agreement during the notice and comment period; therefore, the closed-door settlement discussions ultimately end up dictating the terms of the future agency action. The Ninth Circuit recently dealt a blow to this practice by overturning a consent decree that the U.S. Forest Service, Bureau of Land Management, and U.S. Fish & Wildlife Service entered into with various advocacy groups. Conservation Northwest v. Sherman, No. 11-35729 (Opinion dated Apr. 25, 2013) (holding “that a district court abuses its discretion when it enters into a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.”). (more…)
Category: Air Quality/Climate Change, Courts, Enforcement, Environmental, National Energy Law, Natural Gas/LNG, Nuclear, Regional Energy Law, Shale Development, Upstream Energy