Friday, May 23, 2014 12:34 pm by Lowell Rothschild
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…)
Category: Enforcement, Environmental, Power, Regional Energy Law
Monday, May 19, 2014 2:11 pm by 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…)
Category: Enforcement, Environmental, Natural Gas/LNG, Shale Development, Upstream Energy
Friday, May 16, 2014 3:39 pm by Richard Alonso and Grant MacIntyre
The U.S. Environmental Protection Agency has proposed an expansive rule that would impose additional requirements at petroleum refineries. The proposed rule (which spans 813 pages) is scheduled to be published in the Federal Register, and interested parties will have 60 days from publication to file public comments.
The proposal is a response to a lawsuit from environmental and public health groups alleging that EPA missed statutory deadlines to review the existing refinery Maximum Achievable Control Technology (MACT) rules. EPA settled the litigation, agreeing to either propose additional regulations or propose a determination that additional regulations are not necessary. EPA has decided to propose additional regulations and is required to take final action on the proposal by April 17, 2015. (more…)
Category: Air Quality/Climate Change, Courts, Enforcement, Environmental, National Energy Law
Wednesday, May 14, 2014 3:48 pm by Eric Washburn, Heather Palmer and Lowell Rothschild
Last week, the Gunnison Sage Grouse took another detour on its road to being listed under the Endangered Species Act (ESA), as a federal court agreed to the US Fish and Wildlife Service’s (FWS) request to postpone a listing decision by six months. A listing – and the concurrent protection of over 1.7 million acres in western Colorado and southeastern Utah – would have significant impacts on oil and gas and grazing activities in the region. The grouse’s wobbly path toward listing is therefore being closely watched by the oil and gas industry, ranchers and environmentalists alike, but also offers an interesting lesson on how and why certain species get listed, why some do not, and how the listing timeline can be influenced by third parties. (more…)
Category: Enforcement, Environmental, Midstream, Natural Gas/LNG, Regional Energy Law, Renewable Energy/Cleantech, Shale Development, Upstream Energy
Monday, May 12, 2014 10:21 am by Lowell Rothschild
Earlier this morning, the Obama Administration proposed two new rules which would significantly expand the scope of the Endangered Species Act and, therefore, limit development in areas where endangered and threatened species are – or might eventually be – found. The new rules relate to one of the two main restrictions found in the ESA – that federal actions cannot adversely affect habitat critical to listed species – and would affect the oil and gas upstream and midstream sectors along with other major project development activities.
Most people familiar with the ESA know that, once a species is listed, there is an absolute prohibition on killing, harming, and harassing individual members of the species. But less well known is a restriction which applies only to federal agencies, requiring them to consult with the Fish and Wildlife Service or National Marine Fisheries Service and get FWS or NMFS confirmation that the federal action will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat of the species. This requires consultation for most federal permits and approvals. (more…)
Category: Air Quality/Climate Change, Environmental, Midstream, Upstream Energy
Friday, May 2, 2014 1:56 pm by Grant MacIntyre
On May 1, 2014, Bracewell partner Jeff Holmstead was interviewed in a live on-air chat by the Huffington Post, along with John Walke of the Natural Resources Defense Council (NRDC) and law professor Dan Farber of the University of California at Berkeley. The discussion focused on how the rule works and what the ruling means for coal-fired power plants.
Category: Air Quality/Climate Change, Courts, Enforcement, Environmental, Litigation, Power