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Category Archives: Environment

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Secretary of the Interior’s Report on Landscape-Scale Mitigation Policy

Secretary of the Interior Sally Jewell has released a Departmental report—including multiple “Near Term Policy Deliverables”—which responds to Secretarial Order No. 3330 (October 31, 2013).  In her Order, the Secretary challenged the Department and its constituent agencies, acting through its Energy and Climate Change Task Force, to “develop a coordinated Department-wide strategy to strengthen mitigation

EPA and Army Corps of Engineers issue proposed Clean Water Act jurisdiction rule

On 25 March 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a joint proposed rule defining the jurisdictional reach of the Clean Water Act (CWA). The agencies also simultaneously issued an immediately effective interpretive rule to exempt a list of discrete agricultural conservation practices from CWA regulation under

European Commission publishes minimum principles for shale gas exploration

On 22 January 2014, the European Commission (Commission) published a “Recommendation on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using high volume hydraulic fracturing” (Recommendation). The Recommendation sets out minimum core principles for the exploration and production of hydrocarbons (e.g., shale gas) using high-volume hydraulic fracturing. The Recommendation is

DOI Energy and Climate Task Force to Develop Mitigation Strategies for Projects on Federal Lands

Secretary of the Interior Sally Jewell’s first Secretarial Order, S. 3330, directs DOI’s Energy and Climate Task Force to prepare a comprehensive mitigation strategy for development projects on federal lands.  In a speech on October 31, Secretary Jewell first announced the new mitigation directive when she shared her vision of the Administration’s conservation agenda with

Decision in RCRA “Deadline” Suits: For the First Time, EPA Compelled to Review RCRA Rules by Court-Ordered Deadline

RCRA 2002(b) provides that each of EPA’s hazardous and nonhazardous waste rules “shall be reviewed [by EPA] and, where necessary, revised not less frequently than every three years.”  Until recently, no one had used this provision to obtain a court established deadline by which EPA must review and revise a waste rule.  In April 2012,

Hydraulic Fracturing on BLM-Administered Public and Indian Lands

On May 16, 2013, the Bureau of Land Management (BLM) released a Supplemental Notice of Proposed Rulemaking and Request for Comment regarding hydraulic fracturing on BLM-administered public and Indian lands (Revised Proposed Rule). This Revised Proposed Rule was issued in response to comments on the initial draft Proposed Rule published on May 11, 2012 (Initial Proposed

Update: U.S. Senator Barbara Boxer tackles NEPA Reform in the Water Resources Development Act of 2013; CEQA Modernization Proposal Falls Short in California

Despite criticism from environmentalists and the Obama Administration concerning provisions that would streamline compliance with the National Environmental Policy Act (NEPA), the Senate passed the Water Resources Development Act of 2013 (WRDA), S. 601, by a decisive 83-14 vote on May 15.  The bill in its final form includes provisions that would speed up deadlines

EPA Comments on the Keystone NEPA Review—Monetizing the Social Costs of CO2 Emissions

On April 22, 2013, comments filed on the Keystone Pipeline draft supplemental environmental impact statement, EPA unveiled a new approach to evaluating climate change impacts under NEPA—monetizing social costs of CO2. In those comments, EPA’s Assistant Administrator for Enforcement and Compliance Assurance recommended that the State Department use “monetized estimates of the social cost of

IRS issues favorable guidance on tax credits for wind and other renewable electric generation developers

The Internal Revenue Service has issued highly anticipated guidance in the form of Notice 2013-29, providing guidelines and a safe harbor to determine when the owner of a renewable electricity generation facility (wind, biomass, or other renewable generation sources) is considered to have “begun construction” on any such facility by the end of 2013, making

Friends of the Earth: how ECJ judges have smoothed the way for applicants to bring claims in environmental cases

R (on the application of Edwards and Pallikaropoulos) v Environment Agency (C260/11) The European Court of Justice (ECJ) has ruled that in deciding whether the costs of bringing a claim on an environmental matter are “prohibitively expensive” it is not enough for national courts simply to consider the applicant’s financial situation, it must engage in

Senate Energy Committee Schedules Forums on Natural Gas

The Senate Energy and Natural Resources Committee has announced it will hold a series of roundtable forums on natural gas issues in May. Each of the three forums, which follow a February Committee hearing on natural gas challenges and opportunities, will focus on specific policy issues facing the country’s growing natural gas resources.

Shale gas exploration: European Commission launches stakeholder Consultation

The European Commission is completing a Consultation on the need for additional regulation of unconventional fossil fuel (e.g., shale gas) exploration and development in Europe. The Consultation period ends on 23 March 2013 and results will be made available on the Commission’s website and at a stakeholders’ meeting to be held by the Commission in

EPA Response to Sixth Circuit Denial of Petition to Rehear Earlier Rejection of CAA Aggregation Policy Creates Geographic Confusion

The National Environmental Development Association’s Clean Air Project (NEDA/CAP) recently filed a petition for review for review in the D.C. Circuit challenging a December 21, 2012 EPA Memorandum, which provides policy guidance on the applicability of the Sixth Circuit’s decision in Summit Petroleum Corp. v. EPA (No. 09-4348/10-4572) to Clean Air Act (CAA) Title V and

CEQA Modernization Efforts and New Transportation Bill Provisions May Open the Door to NEPA Harmonization

In his State of the State message on January 24, California Governor Jerry Brown’ urged reform of the forty-three-year-old California Environmental Quality Act, Cal. Pub. Res. Code § 21000 et seq., in order to make it “based more on consistent standards that provide greater certainty and cut needless delays.” Under this “standards-based” approach, CEQA would

DOE, EPA, OMB Nominees Announced

Earlier today, President Obama announced the nomination of three cabinet-level appointments to his Administration: Ernest Moniz as Secretary of Energy; Gina McCarthy as Administrator of the Environmental Protection Agency; and Sylvia Matthews Burwell as Director of the Office of Management and Budget.

Sally Jewell Nominated for Interior Secretary

In a move that surprised many, President Obama has nominated REI chief executive Sally Jewell to replace Ken Salazar as the next Secretary of the Department of Interior. Salazar announced in January that he would be stepping down by the end of March. Jewell is an engineer by trade, and has previously worked in both

Senate Energy Committee to Hold Major Hearing on Natural Gas

Senate Energy and Natural Resources Committee Chairman Ron Wyden (D-OR) has scheduled a full committee hearing on February 12 entitled, “Opportunities and Challenges for Natural Gas.” The hearing will be held at 10:00 am in room 366 of the Dirksen Senate Office Building. This hearing comes at a pivotal time for the U.S. natural gas

Review of issues for 2013

The following is a summary of some of the key issues Congress and the Administration will be debating in 2013. Please contact us with any questions. We are happy to provide further analysis as well as insight into other areas of interest. Agriculture: Tom Vilsack is expected to stay on as Secretary of Agriculture. The

MOU on Culturally Important and Sacred Sites for Indian Tribes

On Dec. 6, 2012, the Departments of Agriculture, Defense, Energy, and the Interior and the Advisory Council on Historic Preservation (the Participating Agencies) signed a Memorandum of Understanding (MOU) to enhance Federal protection of and tribal access to culturally important sites held sacred by Indian tribes. As defined in previously-promulgated Executive Order (EO) 13007, sacred

RCRA “Review” Lawsuits and Toxicity Characteristic/TCLP

The Resource Conservation and Recovery Act (RCRA), at Section 2002(b), provides that each of EPA’s hazardous and nonhazardous waste rules “shall be reviewed [by EPA] and, where necessary, revised not less frequently than every three years.”  Until recently, this provision had never been enforced to require action by EPA, but on April 5, 2012, ten

Clinton-era Roadless Rule Survives Final Legal Hurdle: SCOTUS Denies Cert

Last week, the Supreme Court declined to review the Tenth Circuit’s October 2011 decision upholding the Forest Service’s 2001 promulgation of rules limiting road-building and timber cutting in approximately 1.9 billion acres of National Forests (aka the Roadless Rule).   This was the final legal hurdle for the Roadless Rule, which over the last 10

Dollars Do Count—In the Designation of Critical Habitat, At Least

Landowners who object to the listing of endangered species pursuant to Section 4 of the Endangered Species Act (ESA) are often chagrined to learn that agencies need not consider the economic impacts of their listing decisions.  In designating critical habitat under Section 4, however, the ESA requires the Secretary of the Interior (or Commerce, in

Court Rejects EPA Title V Emissions Aggregation Interpretation

In Summit Petroleum Corp. v. EPA, the U.S. Court of Appeals for the Sixth Circuit rejected EPA’s attempt to classify natural gas production wells and a dedicated processing plant, located miles from the wells, as a single major source under Title V of the Clean Air Act (CAA).  The Sixth Circuit’s decision is important not