Energy

July 10, 2020

The Environmental Protection Agency (EPA) will be 50 years old this year. Over the past half-century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs. These guidance documents come in a wide variety of forms. Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff. Some may provide broad national guidance, while others interpret rules…

The Nickel Report

EP4 – What’s New and What’s Next for the Enhanced Equator Principles?

By Samuel L. Brown & P. Scott Burton

July 9, 2020

Tremont in Great Smoky Mountains in Autumn

The Equator Principles (EPs) are a framework for assessing and managing environmental and social risks associated with project financing. The EPs provide a minimum due diligence standard and monitoring protocol supporting responsible risk assessment and decision-making. The EPs apply globally, to all industry sectors, and are focused on risk management for projects financed by the financial institutions that have adopted the EPs. Currently, the EPs have been adopted by 105 financial institutions across 38 countries.…

Energy & the Law

The Oil Producer and Premises Liability During Covid-19

By Charles Sartain

July 9, 2020

Co-author Bill Drabble Let’s set aside fracking challenges, low prices, and pipeline rejections to discuss the mundane. Should you as an owner of property be concerned about premises liability claims? We’re talking about the office environment and out in the field. What can you do to protect yourself? Gray Reed partner Bill Drabble has the answers. Here are the highlights: There is no federal legislation to protect a business from premises liability. Nor is…

PipelineLaw

Dakota Access Pipeline Must Shutdown While Corps Prepares Environmental Impact Statement

By Deidre G. Duncan & Brian R. Levey

July 8, 2020

Photograph Courtesy of Andrew Whale, Geograph Project

On July 6, the US District Court for the District of Columbia found that the Dakota Access Pipeline (DAPL) must shut down while the US Army Corps of Engineers (Corps) prepares an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA).…

E2 Law Blog

7th Circuit Lowers Removal Hurdle for Defendants That Assisted the Feds

By Tiffany M. Andras

July 8, 2020

On June 18, 2020, the Seventh Circuit handed down a decision in a case involving historical environmental contamination that eases the path to federal court for defendants who are haled into state court for acts that occurred while defendants were assisting the federal government. In Sherrie Baker et al. v. Atlantic Richfield Company, E. I. du Pont de Nemours and Company, et al., No. 19-3160, 2020 WL 3287024, — F.3d — (7th Cir. 2020), the…

Pipelaws

Update: U.S. Supreme Court Allows Use of NWP 12

By Catherine D. Little, Annie M. Cook & Mandi Moroz

July 7, 2020

On July 6, 2020, the Supreme Court partially and temporarily overturned a nationwide injunction that prevented the U.S. Army Corps of Engineers (“Corps”) from using Nationwide Permit 12 (“NWP 12”) for construction of new oil and gas pipelines. NWP 12 authorizes “utility line activities” that have minimal impacts on jurisdictional waters under the Clean Water Act. In April 2020, a federal judge in the District of Montana, while considering challenges to the construction of the…

Energy & Environmental Law Blog

U.S. Supreme Court Stays Injunction Barring Use of Nationwide Permit 12

By Ryan Elliott

July 7, 2020

On July 6, 2020, the U.S. Supreme Court issued an Order partially granting a motion to stay a Montana District Court’s injunction barring the use of the Army Corps’ streamlined Nationwide Permit 12 (NWP 12) governing pipeline and other utility construction activities that impact a water of the United States regulated under the Clean Water Act. The District Court held that the Army Corps failed to engage in programmatic consultation with federal wildlife agencies before…

Energy & Cleantech Counsel

Dakota Access Must Shut Down. Is It a Harbinger?

By Seth Jaffe

July 7, 2020

https-www-lawandenvironment-com-wp-content-uploads-sites-5-2020-07-viorst-300x225-jpg

I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States. I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. Delays, cost overruns, and continued litigation risk related to other…

Energy & the Law

What’s New in the Fracking Fracas

By Charles Sartain

July 7, 2020

There is “new news” and there is the same-old-same-old. Today is mostly the latter but it seems more “out there” than in it used to be. The Pennsylvania Attorney General convened a grand jury that slammed regulatory failures in Pennsylvania gas drilling and recommended setbacks that would effectively destroy the ability to develop shale resources. I don’t know how they do it in Harrisburg but where I come from the prosecutor can get pretty much…

The Nickel Report

DC Circuit Upends Long-Standing FERC Practice on Tolling Orders

By Ted J. Murphy & Brian M. Zimmet

July 6, 2020

On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Court”) issued an en banc rehearing order holding that the Natural Gas Act (“NGA”) does not permit the Federal Energy Regulatory Commission (“FERC”) to issue tolling orders for the sole purpose of preventing rehearing requests from being denied by operation of law. See Allegheny Defense Project, et al. v. FERC, No. 17-1098 (“Allegheny”). The decision upends…