Friday, January 17, 2014 10:52 am by Lowell Rothschild
Spurred on by Congress, on Monday, the Federal Highway and Transit Administrations adopted a categorical exclusion which may spare some projects a detailed review under the National Environmental Policy Act. Specifically, projects that receive less than $5,000,000 in federal funding will be presumed not to have to undertake any NEPA review at all.
The fact that there would be some type of CatEx along this line was never in doubt – in July 2012, Congress included a provision in Section 1317 of the highway bill (called “MAP-21”) specifically ordering DOT to (1) designate a CatEx for any project that receives less than $5 million in federal funding and (2) promulgate a rule to carry out the CatEx. The question was how DOT would implement this mandate: Would any project whatsoever that received less than $5 million be excluded, even if DOT had other major decisions to make on the project – decisions that would normally require NEPA review? (more…)
Category: Environmental, EPAct 2005, National Energy Law
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
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
Thursday, October 18, 2012 2:19 pm by Tracy Davis
In a concerted effort to enhance its ability to monitor energy markets for possible anti-competitive or manipulative conduct, FERC has undertaken a number of separate initiatives to strengthen its market surveillance capabilities over electric power and natural gas markets. Among the areas of focus, FERC has been especially keen on obtaining data and market information on a real-time, or near real-time, basis, which is in contrast to FERC’s traditional collection of data through quarterly or annual reports submitted well after-the-fact. FERC has also been intent on gathering data outside of organized wholesale electric markets.
These initiatives include: (more…)
Category: Enforcement, EPAct 2005, FERC, National Energy Law, Natural Gas/LNG, Organized Markets, Regional Energy Law, Reliability, Transmission
Tuesday, October 25, 2011 3:30 pm by Kirk Morgan and Michael Brooks
A panel of the United States Court of Appeals for the Fifth Circuit has vacated the Federal Energy Regulatory Commission’s (FERC) Order Nos. 720 and 720-A, which imposed new requirements on non-interstate pipelines not normally subject to FERC’s jurisdiction over interstate natural gas pipelines. In an October 24, 2011 decision, the Court concluded that the orders exceed the scope of FERC’s statutory authority under the Natural Gas Act of 1938 (NGA). (more…)
Category: Courts, EPAct 2005, FERC, National Energy Law, Natural Gas/LNG, Regional Energy Law
Wednesday, August 4, 2010 8:39 am by Andrew McLain
The Federal Energy Regulatory Commission (“FERC”) recently determined in a case of first impression that states have limited authority to implement feed-in tariff programs, which generally seek to encourage “green” energy. For energy service companies and energy sellers seeking to take advantage of these programs, the order potentially dampens the prospects for feed-in tariffs to take off in the US, and, at a minimum presents additional FERC compliance considerations, discussed below.
Feed-in tariffs generally consist of three elements: (1) a state-fixed incentive rate designed to attract new sources; (2) a mandated offer to purchase power for a prescribed duration through long-term contract; and (3) a guaranteed access to the grid. (more…)
Category: Environmental, EPAct 2005, FERC, National Energy Law, Renewable Energy/Cleantech