Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

On December 13 the California Public Utilities Commission (“CPUC”) will vote on whether to open a new rulemaking to determine when an electric utility can de-energize power lines in cases of dangerous conditions that threaten life or property in California. The CPUC is considering this new proceeding because California is experiencing unprecedented wildfire events. While the CPUC has granted utilities the authority to proactively shut down power to specific power lines in an effort to…
Bi-partisan legislation under which a fee would be assessed on production or importation of certain fossil fuels as a means of reducing greenhouse gas emissions has recently been introduced in the U.S. House of Representatives by Rep. Ted Deutch (D-FL), and co-sponsored by Reps. Brian Fitzpatrick (R-A), John Delaney (D-MD), Francis Rooney (R-FL) and Charlie Crist (D-FL). Under this legislation, entitled the Energy Innovation and Carbon Dividend Act of 2018 (H.R. 7173), the…
Webinar December 4, 2018 1:00pm-2:30pm EST 10:00am-11:30am PST   Please join Davis Wright Tremaine’s Kerry Shea on December 4 for a CLE webinar in which she will present on a three person panel discussing the impact of California’s Proposition 65 on supply chain agreements. The panel will provide practical guidance on drafting (or amending) supply agreements to ensure compliance with the new regulation and explore how counsel representing manufacturers, producers, importers, and suppliers in both…
In a unanimous decision (with Justice Kavanaugh not participating), the Supreme Court on November 27, 2018, remanded a controversial Endangered Species Act (ESA) decision for further consideration by the Fifth Circuit Court of Appeals. Weyerhaeuser v. U.S. Fish and Wildlife Service (FWS) The Court held that “critical habitat” must be “habitat.” The Court agreed that the ESA did not require that the designated area have members of the species living on it when the…
The Federal Energy Regulatory Commission (FERC) is currently considering whether pairing energy storage with a wind power project could change that facility’s status in FERC Docket No. EL18-195-000. In August 2018, Northwestern Energy petitioned FERC to revoke qualifying facility (QF) status from four Beaver Creek Wind II, LLC (“Beaver Creek”) wind-plus-battery projects under the Public Utility Regulatory Policies Act (PURPA). FERC has limited experience squaring energy storage with PURPA. In the 1990 case Luz Development…
International efforts to reduce marine pollution are bearing fruit, according to a press release issued by INTERPOL on November 13. But it’s a big problem that won’t go away soon. Is it really that bad? Yes. Is it just a problem in U. S. waters? No. It’s international. Those of us who regularly read environmental reports, especially those involving marine transportation, cannot help but be struck by the frequent reports of criminal prosecutions, often settlements…
On October 19, President Trump issued a “Memorandum Promoting the Reliable Supply and Delivery of Water in the West.” The memorandum calls for streamlining federal water infrastructure development and operations, apparently by skirting environmental and other administrative processes. As previously noted, the administration is intent on weakening the laws controlling federal water projects, but that cannot be accomplished by executive fiat alone. At the core of the memorandum is a directive to…
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…