In Minnesota, More Little Red Corvettes May Soon be Electric

Posted in California, carbon emissions, Clean Air Act, Climate Change, Environment, Minnesota, Pollution

On Sept. 25, Minnesota Gov. Tim Walz asked the Minnesota Pollution Control Agency (MPCA) to initiate the process to establish a Clean Cars Minnesota Rule, which would set both a low-emission vehicle (LEV) standard and a zero-emission vehicle (ZEV) standard. Next month, the MPCA will begin its rulemaking process, with a goal of adopting a final rule by December 2020. If implemented, Minnesota would join 14 states with an LEV standard, 11 of which also have a ZEV standard.

The Minnesota plan is modeled after California LEV and ZEV standards. California has a nearly 50-year-old waiver under the Clean Air Act permitting the state to set stricter emission standards. After indications that the federal government would publish a rule revoking the waiver, California, joined by 22 other states, including Minnesota, and the District of Columbia filed a lawsuit seeking to enforce states’ rights to set emission standards more stringent than those imposed by the federal government. The lawsuit presents novel questions under the Clean Air Act including whether a waiver can be revoked, and if so, under what circumstances. Any final rule in Minnesota will be contingent on states retaining the right to adopt more restrictive measures, including through the operative waiver under Sections 209(b) and 177 of the Clean Air Act.    Continue Reading

United States Indicts Facility Owner Under Clean Air Act General Duty Clause

Posted in Clean Air Act, Compliance, Contamination, Court Cases, EPA, GT Alert, OSHA

The U.S. Environmental Protection Agency (EPA) continues to increase its enforcement role in industrial accidents, at times overshadowing the role traditionally played by the Occupational Safety and Health Administration (OSHA). EPA often takes tougher enforcement actions than OSHA and is more willing to bring criminal charges. This trend is reflected in a recent case affirming EPA’s authority to bring criminal charges for alleged violations of the General Duty Clause (GDC) of Section 112(r)(1) of the Clean Air Act (CAA), U.S. v. Margiotta, No. CR 17-143-BLG-SPW-2, 2019 LEXIS 156994, 11 (D. MT. Sept. 13, 2019).

Click here to read the full GT Alert.

FERC Launches Comprehensive PURPA Overhaul

Posted in Energy, Federal, Federal Regulation, FERC, GT Alert, Natural Resources, Regulatory, Renewables, Technology

On Sept. 19, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) to modernize the Public Utility Regulatory Policies Act of 1978 (PURPA), to address market changes in the energy landscape over recent decades. Comments are due 60 days from publication in the Federal Register.

PURPA was enacted in 1978 as part of a legislative package of proposals intended to reduce U.S. dependence on fossil fuels. PURPA encourages the development of alternative generation resources or qualifying facilities (QFs). QFs are small power-production facilities (SPP), which are typically renewable generation facilities, or cogeneration facilities that make more efficient use of the heat produced from electricity generation using fossil fuels.

Click here to read the full GT Alert, which summarizes FERC’s proposed changes to PURPA.

Supplemental Environmental Projects: How Will New Federal Policy Affect Use of SEPs and CEPs in Pennsylvania?

Posted in Articles, Pennsylvania, State & Local

On August 21, 2019, the Justice Department issued a memorandum—Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments—which curtails the use of supplemental environmental projects (SEPs) in consent decrees and settlement agreements with state and local governments.  The new policy will directly impact settlements with municipalities in Pennsylvania, while also reducing the flexibility of settling parties in multi-party cleanups in which a municipal entity is a responsible party.

Read more from my article in this week’s edition of Pa. Law Weekly in The Legal Intelligencer, 42 Pa. L. Weekly 39 (September 24, 2019), by clicking here.



Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains

Posted in Clean Water Act, Clean Water Act, Environment, EPA, Federal, Federal Regulation, GT Alert, Water, WOTUS

On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version).

Dubbed the “Waters of the United States” (WOTUS) rule, the Obama-era regulation spawned a tide of litigation, in federal trial and appellate courts, challenging the WOTUS rule as an unlawful attempt by the EPA and the Corps of Engineers to increase the numbers and kinds of waters subject to permitting requirements. The U.S. Supreme Court ultimately weighed in, saying that challenges to the WOTUS rule belong in the federal districts courts, not the U.S. courts of appeals. National Association of Manufacturers v. Department of Defense, __ U.S. __, 138 S.Ct. 617 (2018). Continue Reading

Latin America Renewable Energy: Calls for Public Bids

Posted in Energy, Environment, GT Alert, Mexico, Renewables

Update: The Ministry of Mines and Energy of Colombia published on September 18 a new Resolution (number 4-0725) in connection with the call for electricity generation projects through renewable energy sources (Resolution 4-0591). This new resolution establishes an additional automatic award mechanism for the long-term energy agreements for the referred projects. The new award mechanism will only apply if there is a positive difference between the target demand and the amount of energy allocated.

In Latin America, encouragement of renewable energy use is a growing trend. Several countries have called for public bids for electricity supply generated from renewable sources, including biomass, hydraulic, geothermal, solar, and tidal. Concessions for the construction and operation of renewable energy projects have been granted. So far in 2019, Chile, Colombia, and Ecuador have called for public bids, and Brazil and Argentina will do so in the second half of the year. This GT Mexico City alert provides an overview of the general terms of the agreements, public bidding process, participation requirements, and execution of agreements between private parties.

Click here for the full GT Alert, “Latin America Renewable Energy: Calls for Public Bids.”

Read in Spanish/Leer en Español.

Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

Posted in Clean Water Act, Court Cases, Environment, EPA, Maryland, Pollution, Stormwater, Water

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain agricultural and other industrial concerns with stormwater requirements.

The Maryland Court of Appeals opinion affirmed water pollution (“NPDES”) permits issued to authorize discharges from two municipal separate storm sewer systems (“MS4s”) to the Chesapeake Bay watershed. Md. Dep’t of the Envt. v. County Comm’rs of Carroll County, Nos. 5 & 7, Sept. Term 2018 (Md. Aug. 6, 2019). The court held that state permits issued by the Maryland Department of the Environment (MDE) are required to conform to the Chesapeake Bay Total Maximum Daily Load (TMDL) issued by the federal Environmental Protection Agency and the Maryland Watershed Implementation Plan (WIP) promulgated by MDE and approved by EPA. The permittee may not challenge permit conditions necessary to meet the requirements of the TMDL or the WIP through judicial review of the permit, but instead must have already sought review in federal court of the TMDL. Moreover, EPA’s interpretation of the TMDL is entitled to Chevron deference. Continue Reading

EPA Seeks Public Comment on Pesticide Applications for Hemp

Posted in California, CBD, Environment, EPA, Farm Bill, Hemp, Regulatory

The legalization of industrial hemp production in the 2018 Farm Bill is a likely boon for farmers grappling with the changing agricultural landscape. Given the strong economic forecasts for hemp production, pesticide registrants are intensifying their interest in gaining approvals for use of their products on hemp. Hemp farmers are also pressing for expanded crop protection tools needed to help them grow the valuable crop.

On Aug. 23, 2019, the EPA announced the receipt of 10 pesticide applications to expand their use to hemp: four from Agro Logistic Systems, Inc., two from Marrone Bio Innovations, and four from Hawthorne Hydroponics LLC, all located in California. The applications ask EPA to add hemp as a new pesticide application site to the labeling of currently-registered pesticide products.  

Currently, there are only six federally-registered pesticide products that list hemp as a pesticide application site on the label. However, these products do not contain food tolerances for residue levels because they were registered before the legalization of hemp in the 2018 Farm Bill. The EPA previously established food tolerance exemptions for all 10 pesticides in the Aug. 23, 2019, announcement. This exemption means the EPA determined, after review of the science, that the residues in the listed pesticides are safe under any reasonably foreseeable circumstances when used as directed. 

An exemption from food tolerance requirements is critical for any company seeking to incorporate hemp or hemp-derivatives, like cannabidiol (CBD), into food or medicines. CBD has been in the news frequently due to its alleged pain-relieving and other therapeutic properties. Absent a food tolerance or an exemption from food tolerance requirements, companies cannot legally incorporate pesticide-treated agricultural products into foods or medicines. The EPA’s decision regarding these 10 pesticide applications will have a profound effect on any business seeking to incorporate hemp products into its production line – food or otherwise, along with hemp farmers and pesticide manufacturers. 

The deadline for submission of comments is Monday, Sept. 23, 2019. They may be submitted electronically via the Federal eRulemaking Portal, using the docket ID EPA-HQ-OPP-2019-0369-0001, or via mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. 

Click here for GT’s January 2019 Alert, “The New Law Regarding the Regulation of Hemp and CBD.”

Click here to read about Greenberg Traurig’s Food, Beverage & Agribusiness Practice.

An uncertain path to a cleaner future: Zero carbon electricity legislation in New York and California

Posted in Articles, California, Carbon Credits, carbon emissions, Compliance, Energy, Environment, Legislation, New York, Renewables

With the recent passage of New York’s Climate Leadership and Community Protection Act, which calls for a carbon free electricity market by 2040, New York became the sixth state to pass legislation calling for a carbon free electricity market. Just one year earlier, California passed similar legislation, SB100, adopting a state policy to achieve a zero-carbon electricity market by 2045. These goals will have to be pursued notwithstanding the fact demand for electricity is projected to increase as other sectors pursue beneficial electrification to comply with ambitious emission reduction goals they face. Whether these goals can be achieved, and at what cost, will depend on technology advancements and how these laws are interpreted and implemented by regulators.

Click here to read the full article by Thomas R. Brill and Steven C. Russo, “An uncertain path to a cleaner future: Zero carbon electricity legislation in New York and California,” published by Utility Dive on Aug. 23.

For more on regulations and legislation aimed at reducing our carbon footprint, click here.

A Building-Emissions Overhaul: How NYC’s LL97 Impacts Owners and Prospective Buyers Moving Forward

Posted in Energy, New York, Real estate, State & Local

New York City recently enacted the most ambitious large-scale greenhouse gas emissions reduction plan in the country, requiring a 40 percent drop in GHG emissions by 2030 and an 80 percent drop by 2050. The package of bills, entitled the Climate Mobilization Act (or CMA), includes an overhaul of building emissions requirements affecting around 50,000 existing commercial and residential buildings called Local Law 97 (or LL97). The new law targets the disproportionately high share of GHG emissions – around 70 percent – originating from buildings in the city. LL97 should encourage building owners to assess current energy usage in anticipation of enforcement, and prospective buyers of buildings covered by this new law should make sure they include as part of any diligence an audit of a building’s energy performance and future mitigations required under the new law.

LL97 regulates GHG emissions (not limited to carbon dioxide) from “covered buildings,” generally defined as buildings over 25,000 gross square feet. Covered buildings must meet and report GHG benchmarks based on Building Code occupancy groups set in five-year increments. Buildings with one or more rent-controlled or rent-stabilized units, low income housing, and real property owned by religious corporations that would otherwise be covered buildings are subject to alternate, prescriptive requirements. LL97 also creates more stringent emissions reductions for “city government operations” (defined as “operations, facilities, and other assets that are owned or leased by the city for which the city pays all or part of the annual energy bills”) – 40 percent by 2025 and 50 percent by 2030.

The enforcement period for LL97 is set to begin in 2024. Limits from 2024 to 2029 will require approximately 20 percent of existing covered buildings to reduce emissions, whereas the limits from 2030 to 2034 will require approximately 75 percent of existing covered buildings to reduce emissions. Requirements from 2035 through 2050 will be determined by the Department of Buildings in keeping with the stated goal of 80 percent citywide reduction of GHG emissions by 2050. The key point is that substantial costs related to emissions reductions are going to be required in a relatively short window.

To monitor compliance and effectuate further rulemaking, LL97 creates the Office of Building Energy and Emissions Performance (the Office) to be run out of the Department of Buildings. Covered buildings must file a report with the Office annually beginning May 1, 2025. The Office will issue penalties to covered buildings that exceed emissions limits in any year of “an amount equal to the difference between the building emissions limit for such year and the reported building emissions for such year, multiplied by $268.”

LL97 provides several alternative methods for meeting GHG reduction requirements. Owners of covered buildings may purchase renewable energy credits representing energy deliverable to the city, and generated in the same year as the purchase of the credit, to offset excessive GHG emissions in any one year. Additionally, a deduction of up to 10 percent of a covered building’s yearly emissions limit is authorized through the purchase of a carbon offset. The new law also authorizes a study of the effectiveness of a carbon trading program in the city, for which an initial report is due Jan. 1, 2021.

Though only the biggest GHG emitters will be required to reduce emissions by the first enforcement period in 2024, all covered building owners are advised to begin exploring methods by which they can (i) begin regularly reporting emissions to the Office by May 1, 2025, (ii) make operational changes to building functions in furtherance of more energy efficient practices, and (iii) engage energy consultants and retrofitting experts to determine the most effective approach to adopting greener energy solutions (including alternative compliance pathways) by 2030, when a majority of covered buildings will be affected by LL97. Should major capital improvements be required, the CMA authorizes Property Assessed Clean Energy (PACE) funding that will offer low upfront costs, low interest rates, long terms, and payments tied to a covered building’s property tax bill, not to any single owner.

LL97 is a sea change with regard to building energy use and emissions in New York City that will invariably impact property acquisitions. Prospective buyers must familiarize themselves with these requirements and should incorporate a thorough review of a covered building’s anticipated compliance strategy with LL97 as part of the diligence process, ideally engaging a consultant for an energy audit. Buyers should determine the estimated cost to comply with LL97, as well as identify potential alternative compliance where such alternatives promise a more reasonable cost.

For more on laws and regulations related to greenhouse gas emissions, click here.