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Showing 26 posts in Energy.

NGOs Challenge Department of Interior’s New Interpretation of “Incidental Take” Liability Under Migratory Bird Treaty Act

National environmental groups recently filed a pair of new lawsuits in New York federal district court seeking to expand the scope of liability for “incidental take” under the Migratory Bird Treaty Act (“MBTA”).[1]  The litigation seeks to overturn recent legal and policy guidance issued by the United States Department of the Interior (“DOI”) and Fish and Wildlife Service (“FWS”) which provided greater regulatory certainty by limiting those agencies’ enforcement actions under the MBTA to claims of intentional harm to migratory birds.  If the new lawsuits prevail, many industries may once again face potential criminal liability for day-to-day operations posing a risk of unintentional effects on migratory birds.  The lawsuits are also a reminder that courts remain split on the scope of MBTA liability, that MBTA enforcement policy may shift between administrations, and that other statutes still make avian protection a key component of environmental planning and compliance at many facilities. Read More ›

Major Offshore Wind Projects Advance in Massachusetts and Rhode Island

Commercial-scale offshore wind power may soon become a reality in New England. On May 23, Massachusetts electric distribution companies selected Vineyard Wind, a subsidiary of Avangrid Renewables, LLC, as the preferred provider of 800 megawatts (MW) of offshore wind generation to the Massachusetts power market, and Rhode Island selected Deepwater Wind as the preferred provider of 400 MW of offshore wind generation to the Rhode Island power market. Both companies propose to generate the electricity from wind projects they intend to construct on federal leases on the Outer Continental Shelf offshore of Massachusetts and Rhode Island. Read More ›

New White House Guidance and Multi-Agency MOU Continue Push to Expedite Environmental Reviews and Permitting for Major Infrastructure

The Office of Management and Budget and Council on Environmental Quality, on March 20, 2018, issued a Memorandum instructing federal agencies how to implement the “One Federal Decision” policy established in Executive Order 13807 (the “Memorandum”).  (Click here for an overview of Executive Order 13807.)  In turn, on April 9, 2018, 12 federal agencies executed a Memorandum of Understanding (“MOU”) to implement this policy.  These efforts are intended to streamline National Environmental Policy Act, Endangered Species Act Section 7, and other environmental reviews and permitting decisions.  They represent the most recent attempt, spanning multiple Presidential administrations, to eliminate inefficiencies and delays associated with these environmental reviews and authorizations perceived to impede infrastructure development. Read More ›

EPA Proposes Revisions to Rules for Disposal of Coal Combustion Residuals from Electric Utilities

Today, EPA published a proposal to amend the regulations in 40 CFR Part 257, Subpart D, governing the disposal of coal combustion residuals (“CCR” or coal ash) in landfills and surface impoundments.  The proposed rule is the first (i.e., “Phase One”) of potentially two proposals to amend EPA’s CCR rules, which the agency finalized in April 2015.  Today’s Phase One proposal reflects an EPA willingness to build certain operational flexibility into the CCR rules, and to revisit some of the details of the governing standards.   It is a detailed proposal that merits a close review by facilities with CCR units regulated under the rules, and those that are otherwise concerned with compliance with the CCR rules. Read More ›

Unanimous Supreme Court: WOTUS Rule Challenges Belong in Federal District Courts

In a unanimous opinion, the Supreme Court today held that lawsuits challenging the 2015 rule amending the definition of waters of the United States (WOTUS Rule) under the Clean Water Act (CWA) must be brought in federal district courts because federal courts of appeals lack jurisdiction over those challenges.  The case, National Association of Manufacturers v. Department of Defense, resolves uncertainty over the scope of the CWA’s judicial review provisions.  The Court’s opinion also opens a new chapter in the fight to keep the WOTUS Rule from going into effect. Read More ›

How The Climate Changed For Renewables In 2017

This article was originally published on January 22, 2018, by Portfolio Media Inc. as a Law360 Expert Analysis, and is available here (subscription required).

When it came to renewable energy, 2017 ended much as it began: with much uncertainty, and movement by the Trump administration to repeal, or at least significantly modify, the Clean Power Plan.

But 2017 also had its bright spots for renewables.  Several states advanced key renewable energy objectives and, despite earlier threats, Congress did not repeal the production tax credit for wind energy or the investment tax credit that is highly valuable to solar developers. Here’s a breakdown of some of the big headlines from 2017. Read More ›

GAO Recommends that PHMSA Evaluate its Model for Pipeline Safety Inspections

Pipeline safety and infrastructure issues have gained attention in recent years due to tight oil resources production, changes in regulations, and several high-profile incidents. On Thursday, August 3, the U.S. Government Accountability Office (GAO) issued a new report recommending that the Pipeline and Hazardous Materials Safety Administration (PHMSA) document the assumptions and decisions it made in developing its Risk Ranking Index Model (RRIM), which PHMSA uses to determine the frequency of its pipeline inspections.  The report also recommends that PHMSA conduct a data-driven evaluation of the RRIM to assess its effectiveness in prioritizing segments for inspection. Read More ›

TCFD Report Will Shape Future Expectations for Climate-Related Financial Disclosures

On June 29, 2017, the Task Force on Climate-Related Financial Disclosures (TCFD or Task Force) released its Final Report providing recommendations on voluntary climate-related financial disclosures.  The recommendations, developed by an industry-led task force of both users and preparers of disclosures, are intended to support the production of more consistent and clear financial disclosure of climate-related risks across sectors for use by investors, lenders, and insurers.  Most G20 countries have existing legal frameworks that require the disclosure of material risks in financial reports.  Beyond legal mandates, investors are increasingly focused on environmental, social, and governance (ESG) factors in evaluating potential investments and future business risk.  While the Task Force’s recommendations are voluntary and independent of the environmental sustainability disclosure standards currently under review in the U.S. by the Securities and Exchange Commission (SEC) (see Beveridge & Diamond alert on the SEC concept release), the recommendations will impact the approach many publicly traded companies take to data collection and climate risk reporting over the long-term. Read More ›

Virginia Begins Development of Cap-and-Trade Program for Electric Power Sector

On May 16, 2017, Virginia’s Governor Terry McAuliffe signed Executive Directive 11 (the “Directive”), which directs Virginia’s Department of Environmental Quality (“DEQ”) to develop regulations to reduce greenhouse gas (“GHG”) emissions from the power sector.  Notably, the Directive requires DEQ to develop a program that is “trading-ready,” with market-based mechanisms capable of linking with other jurisdictions. Read More ›

Executive Order Charts New Path For Offshore Energy Development

On April 28, 2017, the Trump administration issued an Executive Order entitled “Implementing an America-First Offshore Energy Strategy.”  This EO calls for expanded oil and gas leasing in areas of the U.S. Outer Continental Shelf (OCS) that were recently placed off-limits to energy development, and instructs several federal agencies to reevaluate and possibly reverse recent regulations imposed on the offshore oil and gas industry.  If fully implemented, the EO would clear the way for expanded and expedited development of OCS energy resources.   Read More ›