We’ve blogged about the scope of EPA’s proposed Waters of the United States rule and whether it provides any additional clarity to the current regulatory scheme. With this post, we’ll start to outline some direct potential impacts on different segments of industry. Today, we briefly examine what an expanded regulatory scope of waters could mean for industries required to comply with the Spill Prevention, Control, and Countermeasure (SPCC) Rule under the Oil Pollution Act and the Clean Water Act. (more…)
WE KNOW ENERGY®
Tim Wilkins and Grant MacIntyre
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…)
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…)
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…)
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…)
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…)