Will Congress Rollback Trump Regulatory Actions to Advance the Biden Policy Agenda?

Recent news that the Democrats flipped both U.S. Senate seats in Georgia’s run-off election means that the Democrats have enough votes to add the Congressional Review Act (CRA) [1] to the tools that could be used to advance President-elect Joe Biden’s regulatory agenda through the repeal of recent Trump administrative actions. The CRA is a desirable tool because it can reverse actions of the prior administration without the time and resources necessary to do so through traditional rulemaking. But what considerations might Congress and the Biden administration face in deciding whether to...

EPA Approved Texas NPDES Oil and Gas Program Authorization on January 15, 2021

On January 15, 2021, Region 6 of the U.S. Environmental Protection Agency (“EPA”) approved the State of Texas’ October 12, 2020 submittal to the EPA requesting partial National Pollutant Discharge Elimination System (“NPDES”) program authorization for oil and gas discharges. TCEQ’s authority to implement NPDES permitting, compliance monitoring and enforcement for oil and gas activities applies to discharges into water in the state from facilities on land within the State of Texas and extends three (3) statute miles offshore into the Gulf of Mexico. EPA retains jurisdiction for oil and gas...

Changes to Expect in Environmental Litigation Under Biden

One thing is certain about 2021 – environmental and natural resources-related litigation against the federal government will continue apace and it will impact a range of private projects that require federal authorization of some sort or that rely on public natural resources and lands. What is not certain is how the Biden Administration may alter its approach to such defensive litigation to reflect its priorities. That being said, we have identified four areas for potential litigation changes to watch for in 2021. Potential Change #1: Reversing the De-Regulatory Efforts of the Trump...

FERC Adopts Expanded Definition of Cogeneration QFs to Include Certain Fuel Cell Systems

On December 17, 2020, the Federal Energy Regulatory Commission (“FERC”) adopted a final rule (“Final Rule”) [1] regarding the potential for certain fuel cell systems to attain qualifying facility (“QF”) status pursuant to Sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978, as amended (“PURPA”) [2] . The Final Rule slightly amends the underlying proposed rule , issued on October 15, 2020 and discussed in greater detail here , in response to comments that the proposed rule would have applied to an overly-narrow subset of fuel cell technologies. In the Final Rule, the...
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FERC Proposes Incentive-Based Rate Treatment for Cybersecurity Investments

On Thursday, December 17, 2020, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Proposed Rulemaking (“NOPR” or “Proposed Rule”) seeking comment on proposals that would allow public utilities to make a filing pursuant to Section 205 of the Federal Power Act (“FPA”) to seek incentive-based rate treatment for certain cybersecurity investments made to improve the security of the Bulk-Power System (“BPS”). [1] The NOPR follows a white paper published by FERC staff in June 2020, which expressed concern that the promulgation of mandatory reliability standards in accordance with...
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