On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”).  The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly.  Each of the eight species is currently a “candidate” for listing.  The Service previously found that each species warranted protection under the ESA, but that listing was warranted but precluded (“WBP”) due to the need to focus on other higher priority species.     Continue Reading Fish and Wildlife Service Faces Challenge on Delay in Listing Species

The New York City Council recently enacted a sweeping package of bills aimed at constricting carbon emissions from buildings across the City in an effort to combat climate change.  Known as the “Climate Mobilization Act,” the package sets lofty goals of reducing greenhouse gas emissions from certain buildings by 40% by 2030, and by 80% by 2050.  The measure is similar to recent efforts by other cities to reduce carbon emissions.  For example, numerous U.S. cities, including Boston, Indianapolis, Seattle, and Washington, DC, aim to be carbon neutral by 2050.  However, while these efforts focus on the use of renewable energy sources, New York aims to curb emissions through requiring the use of green building products and materials in certain buildings.  As such, impacts of the Climate Mobilization Act will be realized in a different manner than other efforts.

Continue Reading New York City Enacts Sweeping Climate Package

On Monday, May 6, 2019, the Oregon Department of Environmental Quality (Oregon DEQ) denied a water quality certification under section 401 of the Clean Water Act for the proposed Jordan Cove liquefied natural gas (LNG) export terminal and its feeder pipeline, the Pacific Connector, to be located on Oregon’s southern coast. Continue Reading Oregon DEQ Denies Jordan Cove Water Quality Certification

On April 15, 2019, the environmental group Columbia Riverkeeper (Riverkeeper) filed suit against the U.S. Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Washington, alleging that the Corps’ operation of the Chief Joseph Dam is in violation of the Clean Water Act (CWA). Riverkeeper’s complaint raises important questions as to whether certain discharges from hydropower facilities trigger the need for an authorization under the National Pollutant Discharge Elimination System (NPDES) pursuant to section 402 of the CWA, 33 U.S.C. § 1342. Continue Reading Environmental Group Files Suit Against Army Corps under Clean Water Act

EPA Region 6 has proposed to withdraw a 2015 finding that Texas’s State Implementation Plan (SIP) is substantially inadequate to comply with the Clean Air Act (CAA) because of state rules that provide an affirmative defense for excess air emissions that occur during upsets and unplanned maintenance, startup, and shutdown activities. 82 Fed. Reg. 17,986 (Apr. 29. 2019). Region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance. Accordingly, Region 6 is proposing to withdraw EPA’s 2015 “SSM” SIP call issued to Texas based on the finding of substantial inadequacy. Continue Reading EPA Region 6 Withdraws “SSM” SIP Call for Texas

On May 1, 2019, the Fish and Wildlife Service (“FWS” or “Service”) issued a proposed rule “downlisting” Endangered Species Act (“ESA”) protections for the American burying beetle from endangered to threatened. The burying beetle was listed as endangered in 1989 and its listing has been particularly impactful to oil and gas development in Texas and Oklahoma.  Once with a range across thirty-five states, the beetle’s range when listed had been depleted to just two areas—Oklahoma and Rhode Island.  The Service states that, due to the success of mitigation programs, that the beetle now inhabits nine states (Arkansas, Kansas, Massachusetts, Missouri, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas) warranting the downlisting.  The Service states that the downlisting was the result of collaborative work with industry, but opponents argue that that the rollback of protections will negatively affect the species by opening up parts of Oklahoma to drilling and removing obstacles from drillers in Texas.

Continue Reading Fish and Wildlife Service Proposes Downlisting of the American Burying Beetle

On April 24, Troutman Sanders partner Sean Sullivan presented during the PFAS and Other Emerging Contaminants Conference hosted by the American Council of Engineering Companies of North Carolina.

Sean’s presentation, “Turning Science into Law: The Process for Setting Health-Based Exposure Limits” explored the Safe Drinking Water Act, the EPA’s PFAS Action Plan and North Carolina’s Default Rules for Surface Water and Groundwater Quality Limits, among others.

A copy of the presentation can be viewed here.

In an order on rehearing issued April 18, 2019, the Federal Energy Regulatory Commission (Commission or FERC)—applying the newly minted Section 36 of the Federal Power Act (FPA), 16 U.S.C. § 823g—decided to extend the new license term for Pacific Gas and Electric’s (PG&E) Poe Hydroelectric Project by 10 years.  Pacific Gas and Electric, 167 FERC ¶ 61,047 (2019).  FERC’s initial relicensing order granted a new 40-year license term for the project, but on rehearing, the Commission decided that the new requirements of FPA Section 36 warranted the statutory maximum license term of 50 years.  FERC’s April 18 order on rehearing provides insight into how FERC interprets Section 36, which greatly expands the type of investments made by licensees that FERC must consider when determining the length of a new license term for a hydroelectric project.

Continue Reading FERC Issues First Order Applying New Federal Power Act Section 36 by Granting a 50-Year License Term

On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.

Continue Reading Court Orders EPA to Redo Parts of the 2015 ELG Rule

On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement. Continue Reading EPA Publishes Interpretation of Clean Water Act’s Applicability to Pollution Traveling Through Groundwater