Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

On October 11, 2018, OSHA issued interpretive guidance designed to “clarify” controversial language in the Preamble to the anti-retaliation provisions in the recordkeeping and reporting amendments adopted by the Obama OSHA Administrator in 2016. The Preamble, which can be cited as authority in contested OSHA matters, suggested that employer safety-incentive programs are generally suspect because, in OSHA’s view, they incentivize workers not to report injuries/illnesses (or put peer pressure on co-workers not to report) and…
On October 11, by a 5-0 vote, the California Public Utilities Commission (CPUC) approved Commissioner Peterman’s alternate proposed decision to reform the Power Charge Indifference Adjustment (PCIA). The PCIA fee is comprised of financial obligations the utilities made on behalf of customers to build power plants and, more commonly, enter into long-term power purchase contracts with independent power producers. The PCIA appears as a line item on most Californians utility bills, and is meant to…
There have been five circuit court decisions in 2018 addressing the application of the Clean Water Act (CWA) to discharges reaching navigable waters through groundwater. The year started with a decision by the Ninth Circuit which, addressing discharges through groundwater from an injection well, held that where there was a direct hydraulic connection between the point source and the navigable water, the fact that the discharge traveled through groundwater from the point source did not…
In Environmental Law Foundation v. State Water Resources Control Board, the California Court of Appeal for the Third District on August 29, 2018 affirmed a district court’s application of the Public Trust Doctrine to the impact of groundwater wells on the Scott River in Siskiyou County. The case has far-reaching implications for groundwater use in California, undermines the measured implementation groundwater management provided in the Sustainable Groundwater Management Act (SGMA), and is a further…
In Sierra Club v. Virginia Electric & Power Company (“VEPCO”), the Fourth Circuit Court of Appeals affirmed in part and reversed in part a district court decision finding VEPCO liable for unpermitted discharges to navigable waters through groundwater from a coal ash landfill and settling ponds. VEPCO had not challenged the lower court’s finding that there was a direct hydraulic connection to the navigable water through groundwater, and the court accepted without discussion that such…
Controversies over natural gas pipeline siting and construction have turned the Federal Energy Regulatory Commission (FERC) into a newsmaker in recent years. As public awareness concerning pipeline projects grows, more members of the public are turning to the FERC’s website (ferc.gov), to understand how FERC evaluates pipeline certificate applications and to get updates on the status of individual applications. Concerned that FERC is not yet ready for this challenge, a May 2018 Department of Energy
According to the EPA, about 10,000 semi-truck glider kits are sold in the U.S. each year. Glider kits consist of new truck bodies fitted with remanufactured or salvaged engines and transmissions that do not use exhaust gas recirculation and do not require exhaust gas after-treatment. Because of this, an EPA study in 2017 found that NOx emissions were as much as 43 times higher on glider kit vehicles than on compliant trucks. Particulate matter emissions…
On October 16, 2017, the now former Administrator of EPA, Scott Pruitt, issued a memo to the agency directing steps intended to end what has been known pejoratively as “sue and settle” – the practice of suing agencies, particularly EPA and the federal resource managers, for failing to meet statutory and regulatory deadlines, and then quickly settling with a consent decree mandating compliance by a set date, but not with a pre-determined result. And of…
On August 27, 2018, the Office of Restoration and Damage Assessment (ORDA) at the Department of the Interior published an Advance Notice of Proposed Rulemaking and request for public comment on revision of the Department’s regulations for the conduct of natural resource damage assessments (NRDA) in connection with releases of hazardous substances. The notice identified several specific areas on which it solicited comments, although it welcomed comments and suggestions regarding other areas. Comments will be…
On August 17, the day after a federal judge in South Carolina invalidated the Trump administration’s suspension of the rule defining “waters of the United States” (WOTUS) under the Clean Water Act, a panel on the D.C. Circuit invalidated an effort by the administration to extend by 20 months the effective date of the Chemical Disaster Rule, and ordered the rule implemented immediately. What It Means This loss in Air Alliance Houston v. EPA,…