Winston’s Environmental Law Update

Recent lawsuits against renewable energy projects show that they are not immune from environmental challenges. Many support deploying more wind and solar assets to reduce greenhouse gas emissions.

On October 1, 2020, the United States Environmental Protection Agency (EPA) issued a final rule under Section 112(a) of the Clean Air Act, ending EPA’s “once-in-always-in” policy governing emissions of hazardous air pollutants (HAPs).

On October 1, 2020, the fourth version of the Equator Principles (EP4) came into effect. The Equator Principles are global, cross-industry risk management guidelines applicable to project finance advisory services, project-related corporate loans, and bridge loans. 

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) finalized the “Clean Water Act Section 401 Certification Rule.” Issued in response to President Trump’s Executive Order 13868 “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to review the Clean Water Act (CWA) Section 401 certification process, the final rule seeks to clarify the role of states and authorized tribes in ensuring that activities subject to federal CWA permitting requirements comply with established water-quality standards. While streamlining the water-quality certification process in the name of promoting energy infrastructure, this rule also restricts the scope of state and tribal review under Section 401.

Last Thursday, President Trump issued an Executive Order (Order) entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities, which expands on a series of initiatives by the Trump Administration to address the economic impacts of COVID-19. The Order is intended to expedite infrastructure projects by requiring agencies to take “all reasonable measures to speed infrastructure investments.” Such “reasonable measures” include exercising emergency statutory provisions in the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Water Act (CWA), and other laws to bypass environmental procedural requirements. In addition to infrastructure, transportation, and civil works projects, the Order applies to energy, environmental, and natural resources projects on federal lands.

Under Section 211(v) of the Clean Air Act, EPA was required to complete “a study to determine whether the renewable fuel volumes required by [Section 211(o)] will adversely impact air quality as a result of changes in vehicle and engine emissions of air pollutants.” On May 29, 2020, EPA released its so-called anti-backsliding study, which evaluated two scenarios for calendar year 2016.

The Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps) case continues in the Ninth Circuit.

On May 11, 2020, the Montana federal district court issued an amended order in the Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps), narrowing the scope of its initial nationwide vacatur of Clean Water Act Section 404 Nationwide Permit 12 (NWP 12).

The energy industry across the country continues to watch the Montana district court case Northern Plains Resource Council v. U.S. Army Corps of Engineers (NPRC v. Corps), given the “nationwide” impact of the Montana court’s April 15^th order vacating Clean Water Act Nationwide Permit 12 (NWP 12).

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018.

On April 27, 2018, Germany’s Federal Network Agency announced the results of its second offshore wind power auction; the six winning bids are cumulatively capable of producing 1,610 megawatts (MW) of power. 

On January 5, 2018, U.S. Magistrate Judge Susan Paradise Baxter issued an opinion and order in the U.S. District Court for the Western District of Pennsylvania which sanctioned two attorneys from the Community Environmental Legal Defense Fund (CELDF) for advancing “discredited” community-rights based arguments to oppose the issuance of an injection well permit by the United States Environmental Protection Agency (USEPA).

On January 4, 2018, the Trump administration announced plans to allow new offshore oil and gas drilling in United States coastal waters.

On December 11, 2017, Exxon Mobil (Exxon) announced it would disclose more information regarding the potential impact of climate change on its business.

Last week, the Electric Reliability Council of Texas (ERCOT) announced that commercial operation of a new 155-megawatt wind farm in West Texas pushed the State’s wind power capacity to over 20,000 megawatts, exceeding the State’s capacity of 19,800 megawatts from coal-fired power plants.  

On November 15, 2016, the U.S. Department of Interior (DOI) Bureau of Land Management (BLM) announced the final Methane and Waste Prevention Rule, which will reduce the release of natural gas into the atmosphere from oil and gas operations on public and Indian lands. 

On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in West Virginia v. EPA, the case challenging EPA’s Clean Power Plan. All ten of the active judges on the D.C. Circuit, except for Chief Judge Garland (who has been nominated to the Supreme Court), heard the case. 

On June 3, 2016, U.S. EPA finalized its long-awaited rule defining the scope of a “stationary source” in the oil and gas industry for purposes of New Source Review and Title V permitting. 

On the heels of a similar request from more than 28 states, a group of 60 utilities led by Basin Electric Power Cooperative filed an application in the Supreme Court of the United States on January 27 for an immediate stay of EPA’s Clean Power Plan regulations pending review of the rule in the U.S. Court of Appeals for the D.C. Circuit. The utilities filed their application in response to the D.C. Circuit’s denial of their motions for a stay of the rule on January 21.