Actis Unveils $1.9 Billion Pan-African Renewable Energy Joint Venture

Posted in Energy, Green Building, International, Renewables

On Feb. 17, U.K. private equity firm Actis announced a $1.9 billion joint venture with energy developer Mainstream Renewable Power to build a series of wind and solar projects throughout Africa over the next three years.  Read more on Greenberg Traurig’s new “Doing Business in Africa” blog.

 

Government Access to Contaminated Sites

Posted in Articles, Court Cases, Pennsylvania

Regulators need access to environmentally contaminated sites.  They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance.  But when the contaminated property is not the source of the release, that means that someone who has been dumped on has to allow an intrusion onto his or her property merely because of having been dumped on.  That has to be true, or else all cleanups would be optional.  Yet, the right of access has limits.

My February column in the Pennsylvania Law Weekly reviews the authorities for access provided in section 104(e) and 104(j) of the federal Comprehensive Environmental Response, Compensation and Liability Act and section 503 of the Pennsylvania Hazardous Sites Cleanup Act.  The Commonwealth Court has had occasion just recently to consider section 503 in Commonwealth v. Spangler, No. 1917 C.D. 2013 (Pa. Commw. Ct. Jan. 23, 2015).

Read When Can the Government Access Contaminated Sites?, 38 Pa. L. Weekly 148 (Feb. 17, 2015), by clicking here.

Obama Administration Announces New Steps to Spur Private Investment in Infrastructure Projects

Posted in Policy

Written by Diane J. BlagmanRobert S. BramsBruce H. Giles-KleinAlais L. M. Griffin, Yosbel A. IbarraJamey L. Tesler 

Last year we brought you an update on the state and local infrastructure funding proposals passed by voters in the November elections.  We now examine President Obama’s “Build America Investment Initiative,” designed to facilitate the use of innovative financing and private capital to help state and local governments deliver needed infrastructure projects. On Jan. 16, 2015, the Obama administration announced additional new steps that it is taking to support the Initiative. This Alert provides an overview of these steps and the ongoing implications for public-private partnerships (P3s).

* Special thanks to Kelsey Berkowitzˇ for her assistance in creating this Alert.  ˇ Not admitted to the practice of law.

 

 

New York Clears the Way for Permitting LNG-Refueling Stations

Posted in Energy, New York, Oil & Gas, Permitting

The New York State Department of Environmental Conservation (DEC) announced on January 28, 2015 that it has finalized a new regulatory regime to allow the construction of liquefied natural gas (LNG) refueling stations in all parts of the State except for New York City.  Under the agency’s final Part 570 regulations, the facilities would be allowed to store up to 70,000 gallons of LNG, which DEC believes is sufficient to incentivize the construction of new refueling stations.  As we noted in November 2014  and September 2013,DEC added the 70,000 gallon limit based upon safety concerns raised in response to the agency’s initial set of proposed regulations – which lacked any capacity limitation. DEC anticipates that virtually all of the refueling stations would be used by long-haul tractor trailers to address the growing percentage of the nation’s trucking fleet that is converting to LNG.  As the New York Times reported, manufacturers and retail chains have pressed for transportation of their goods by natural gas vehicles and companies like U.P.S. and FedEx have started exploring the option. Clean Energy Fuels, which boasts a system of over 500 LNG and CNG refueling stations around the country, would appear to be a leading candidate for constructing refueling stations in New York.

Based upon the large volume of comments submitted in opposition to the new regulations, it would not be surprising if these regulations are subject to a court challenge.  Although many of the comments in opposition are focused on the connection between LNG refueling stations and the purported evils associated with natural gas extracted by high volume hydraulic fracturing (HVHF), it is likely that a court would defer to the agency’s appraisal of the environmental impacts associated with the new regulatory regime.  Indeed, DEC pushed back in its Regulatory Impact Statement (RIS) by noting that less than 1 percent of the natural gas used in the State would be devoted to transportation for the foreseeable future; i.e., the regulation would have no impact on HVHF and vice versa.  Moreover, the Governor recently announced that DEC would ban HVHF in New York.  Thus, any environmental impacts related to HVHF would not occur within the State anyway, and New York’s environmental review statute, SEQRA, does not require consideration of out-of-state impacts when promulgating regulations.  On a global perspective, the intent of the regulations is to incentivize long-haul tractor trailers to convert from diesel – one of the dirtiest transportation fuels – to clean burning LNG.  Thus, the agency appropriately concluded that the regulations would be beneficial from an air pollution perspective.  Furthermore, any site-specific environmental impacts would be addressed in the permit proceeding authorized by the regulations.

A likely area of dispute would be whether DEC appropriately interpreted the part of the statute specifying that the “intrastate transportation” of LNG must be along certified routes.  ECL § 23-1713(1).  The statute requires the New York State Department of Transportation to establish those intrastate routes pursuant to certain specified criteria, including “the capability of municipal fire departments” to address LNG explosions.  Id. § 23-1713(2).  It is this language – added in 1976 – that has prevented the two agencies from adopting regulations based upon the belief that some municipalities would object to being included along a certified intrastate transportation route, and thus would not cooperate in certifying that its fire departments were capable of addressing LNG explosions.  Indeed, this language highlights how out-of-date the statute is, given the number of far-more dangerous chemicals that are legally and safely transported over state roads every day.

To address this requirement, DEC has interpreted the term “intrastate transportation” narrowly to include only transportation of LNG that is initiated in the State.  In other words, if the transportation is initiated in another state, it would considered “interstate” (rather than “intrastate”) transportation, and thus not be covered under ECL § 23-1713(1).  Based upon this interpretation, Part 570 simply prohibits the intrastate transportation of LNG.  Thus, the route associated with any LNG delivered by truck to a LNG refueling station located in New York would have to be initiated out-of-state.  DEC explained in the RIS that its interpretation in this respect “dovetails” with the significant federal involvement in this area.  For example, DEC notes that the federal Pipeline and Hazardous Materials Safety Administration (part of USDOT) and the U.S. Coast Guard have authority over safety standards for LNG storage and transportation in interstate commerce.  Thus, without saying explicitly, the agency appears to be concerned that requiring trucks in “interstate” commerce to use specific in-state routes would either be preempted by federal law or violate the Commerce Clause under Article I to the United States Constitution.  DEC thus prudently interpreted the statute in a manner that assures the regulations are constitutional by omitting interstate transportation from its scope.

The effective date of DEC’s final Part 570 regulations is February 26, 2015.  DEC’s final rulemaking documents can be found here: http://www.dec.ny.gov/regulations/93069.html .

 

 

Anti-Fracking Resolution by Miami-Dade County

Posted in Florida, Hydrofracking

In the last six weeks we’ve provided analysis of the fracking bans in New York and Denton, Texas. Further on the anti- fracking front,  the Miami-Dade County Commission passed a resolution last week urging the Florida Legislature to adopt Senate Bill 166 (filed by Sen. Soto and Sen. Bullard) or similar legislation that would prohibit hydraulic fracturing (also known as “fracking”) and to take measures to safeguard  the water supply and environment through better regulation of oil drilling methods and extraction techniques.   Dr. Hal  Wanless of the University of Miami testified in support of the anti-fracking resolution, noting that Florida’s highly permeable limestone geology renders its drinking water supply vulnerable to contamination from fracking activities.

The Debate Over Florida’s First Commercial Waste-to-Energy Incinerator in 2 Decades

Posted in Biofuels, Energy, Florida

Palm Beach County will soon commence operations of the nation’s first commercial waste-to-energy trash incinerator in 20 years.  The $670 million incinerator, located immediately north of the Solid Waste Authority’s existing facility on Jog Road, will combust approximately 3,000 tons of material per day.  The source of fuel will be tires, wood, automobile remnants, and residential garbage.   According to the Authority’s website, the new facility will process 1 million tons of municipal solid waste (MSW) per year and generate enough electrical power for 56,000 homes.   

The local opposition to the incinerator and its 80-foot smokestack has largely centered on increased garbage truck traffic on county roads, noise and odor concerns, and the fact that garbage is being accepted from outside the County for at least 8 years, which the opponents say will hurt the county’s tourism industry.  Environmental advocates raised concerns over the facility’s toxic air emissions and unknown future impacts, and oppose the importation of trash as “contrary to the county’s efforts to reduce greenhouse gas emissions.”  Instead, the Sierra Club advocated for the use of alternative energy sources such as solar power and pointed to the need to reduce the volume of trash generated through composting and recycling.

The County’s Solid Waste Authority rebuts these arguments by emphasizing that the waste-to-energy plant is a better alternative for waste disposal than the original idea of siting a new landfill near the Everglades and that the importation of trash for a  limited duration and a 19 million tipping fee offsets the cost of the building the plant.  Supporters also point to the fact that recycling rates have largely flattened, with Palm Beach County’s rate of about 30% slightly under the EPA reported national rate of 34%, and that the U.S. Environmental Protection Agency considers a waste-to-energy facility to be a “clean, reliable source of energy, that would “improve[e] air quality by reducing consumption of fossil fuels.   Further, the Authority counters that the new waste-to-energy facility will reduce the amount of waste currently being deposited in a landfill by 85%, thereby postponing the need for new landfill capacity, and the emissions permit limits will be the lowest of any renewable facility combusting MSW in the United States.

Some in the solid waste disposal industry view the debate over the Palm Beach County facility as “an acknowledgment of defeat in the effort to reduce output and step up recycling.”  As local governments like Palm Beach County look for cheaper, simpler alternatives for waste disposal, they are led to a re-examination of the feasibility of incineration and landfills, options whose environmental impacts were once viewed as too controversial.             

 

 

Miami-Dade County Moves Forward with Comprehensive Climate Change Planning Initiatives

Posted in Climate Change, Florida

I have written previously here about Miami-Dade County’s recent climate change initiatives,  which included adoption of requirements in 2014 that all county infrastructure projects consider the potential impact of sea level rise during all project phases and that existing infrastructure be evaluated in the face of sea level rise.

Yesterday, the Miami-Dade County Commission moved closer towards greater resiliency by voting to adopt all 6 of the recommendations of the Miami-Dade County Sea Level Rise Task Force as set forth in the Task Force’s July 1, 2014, Report.  Among the recommendations adopted yesterday , the County Commission  directed the Mayor and the Mayor’s staff to i) prepare an action plan to accelerate the adaptation planning process  by evaluating the relevant expertise needed to develop an enhanced capital plan for flood protection, salinity structures, pump stations, and road and bridge design stations,   ii ) study the feasibility of designating certain geographic areas within the County as climate change adaptation  areas; and iii) initiate discussions with private insurance and reinsurance  organizations, the state Insurance regulatory authority, and other key stakeholders to develop long-term risk management solutions.   The resolutions also included direction for the Mayor to work jointly with state and regional governmental agencies to conduct a comprehensive evaluation and develop adaptation strategies for the County, which will include potential funding mechanisms and a time frame for implementation.

Notwithstanding the far-reaching nature of these directives, the Task Force’s recommendations enjoyed a broad spectrum of support at the County Commission meeting.  Supporters ranged from Tropical Audubon and The Cleo Institute to the Builders Association of South Florida and the Greater Miami Chamber of Commerce.  The Chairman of the Task Force referred to the need to protect an estimated $ 6 trillion of assets at potential risk in south Florida due to the impacts of sea level rise.

The details of the Task Force’s recommended action plan and the costs of its implementation have yet to be determined (although reported projections for implementation of the plan are in the $ 20 billion range).   What is clear, however, is that, as the global debate continues about the quality –of- life  and economic consequences of climate change and sea level rise, Miami-Dade County is taking additional steps to “set the stage for a fully comprehensive assessment and plan to provide an evolving infrastructure, resilient to a worst case scenario.”   Res. R-451-14 (May 6, 2014).    We will continue to follow these developments.

 

2014 Environmental Cases in the Pennsylvania Appellate Courts

Posted in Court Cases, Environment, Pennsylvania

My column this month in the Pennsylvania Law Weekly summarizes most (maybe all) of the decisions of the Pennsylvania appellate courts with an environmental dimension in 2014.  Read A Review of 2014 Environmental Cases in Pa.’s Appellate Courts, 38 Pa. L. Weekly 28 (Jan. 13, 2015), by clicking here.  If I have left something out, leave a comment.

New York Environmental Regulator Announces New Hazardous Waste Enforcement Initiative

Posted in New York

In a move that will have a substantial impact on how supermarkets, drug stores and big box retailers in New York State manage returned, expired and damaged products, the New York Department of Environmental Conservation (DEC) recently announced that it would begin to require strict compliance with the hazardous waste management requirements of the Resource Conservation and Recovery Act (RCRA). In this GT Alert, the authors discuss this new development and what affected businesses may do to respond.

 

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