Section 7(h) of the Natural Gas Act (NGA) and Section 21 Federal Power Act (FPA) respectively vest Federal Energy Regulatory Commission (FERC or Commission) natural gas pipeline certificate holders or hydroelectric licensees with the ability to exercise the federal power of eminent domain to condemn property when the project proponent is unable to acquire necessary rights by contract or negotiation with the property owner. On June 29, the U.S. Supreme Court, in PennEast Pipeline Co. LLC v. New Jersey, No. 19-1039, held that the 11th Amendment of the Constitution does not bar a certificate holder under the NGA from exercising eminent domain to condemn state-owned property. Significantly for hydropower projects, the Supreme Court’s holding also potentially provides clarity that the 11th Amendment is not a bar to the analogous Section 21 provision of the FPA if a hydroelectric licensee must exercise eminent domain over project-necessary state-owned lands.
On July 6, the U.S. Department of Energy (DOE) announced a funding opportunity for the research and development of wave energy converter (WEC) technologies for advancement toward wave energy commercial viability. As much as $27 million in federal funding is available for WEC technologies still in the early stages of development for testing at PacWave, an open ocean wave energy testing facility consisting of two sites, each located just a few miles from the deep-water port of Newport, OR.
The Virginia Code requires a site suitability determination for all projects seeking air emission permits. Va. Code 10.1-1307.E. While this provision has been in place for decades, it has never received significant attention, and has historically been interpreted to require compliance with local zoning laws. In 2020, however, environmental groups used the law to successfully challenge a minor new source permit for a compressor station associated with an interstate natural gas pipeline. They argued that the site suitability analysis undertaken by the Virginia Department of Environmental Quality (DEQ) did not adequately address or consider environmental justice concerns, and the Fourth Circuit Court of Appeals agreed. Friends of Buckingham v. State Air Pollution Control Bd., 947 F. 3d 68 (4th Cir. 2020).
EPA announced yesterday its intent to revise some portions of the 2020 Steam Electric Effluent Limitation Guideline Reconsideration Rule (2020 ELG Rule). EPA’s press release and the pre-publication version of its Federal Register notice sent a clear message that the agency is aiming at membrane technology to control flue gas desulfurization (FGD) wastewater discharges from coal-fired power plants. The notice also states that the agency will reconsider the technology selected for bottom ash transport, and it may revise or eliminate the subcategories created by the 2020 ELG Rule for high-flow facilities, low-utilization facilities, and for facilities that commit to retire or repower coal-fired units by 2028.
The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions. Continue Reading Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?
Now that we’re past July 4th and on the downhill side of summer, thoughts are turning to what EPA and the courts might do this fall with the many air quality and climate change issues before them. Here is a list of some of the most closely watched rulemakings on EPA’s recently released regulatory agenda and some key issues to watch for under the new Biden EPA. The ID numbers below for each agenda item contain links that will take you directly to the webpage tracking the status of the action.
There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).
The Third Circuit Court of Appeals issued a ruling June 21 that certain releases of air pollutants “subject to” Clean Air Act (CAA) requirements, even if not in compliance or specifically named in a permit, are exempt from release reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Clean Air Council v. United States Steel Corporation, No. 20-221 (3rd Cir. filed June 21, 2021). This ruling undercuts a longstanding EPA interpretation of the CERCLA reporting requirement that limited the exemption to only those releases actually in compliance with a federal CAA permit.
On May 26, the Senate Finance Committee voted to advance legislation that would amend certain energy tax provisions in an effort to combat climate change, curtail greenhouse gas emissions, and create jobs. The bill, known as the Clean Energy for America Act, would provide an “emissions-based, technology-neutral tax credit” for facilities with zero or net negative emissions as well as certain energy storage facilities and high-capacity transmission lines. The bill includes several provisions that would benefit hydropower facilities, including an extension of the production tax credit through the end of 2022, which will encourage new hydropower development and a provision that would make pumped storage hydroelectric facilities eligible for the investment tax credit. It would also include tax credits to encourage environmental, safety, and efficiency improvements at existing hydropower facilities and to remove dams that have reached the end of their useful life. Continue Reading Proposed Legislation to Impact Hydropower
On March 17, 2021, a coalition of environmental organizations and clean energy groups led by the Center for Biological Diversity (CBD) petitioned the Federal Energy Regulatory Commission (FERC) for a rulemaking that would amend the Uniform Systems of Accounts (USofA) requirements to disallow utilities from recovering the cost of membership from ratepayers in associations engaged in lobbying or other influence-related activities. CBD argues that these associations lack transparency, and many engage in “anti-climate” advocacy, including lobbying and campaigning activities, that do not align with the priorities of ratepayers. Continue Reading Clean Energy Groups Ask FERC for Transparency Into “Anti-Climate” Groups