Jillian Kirn

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Commonwealth Court’s Invalidation of Pennsylvania PUC Defined Terms – Potential Net Metering Implications

On May 12, 2020, a three-judge panel of the Commonwealth Court of Pennsylvania held that certain net metering regulations of the Pennsylvania Public Utility Commission (PUC) are unenforceable. The regulations at issue are related to the implementation of Pennsylvania’s Alternative Energy Portfolio Standards Act (AEPS Act), which incentivizes the use of electricity generated by renewable … Continue Reading

Before Making Pandemic Response Products, Consider Environmental Regulations

Yesterday, March 26, 2020, the U.S. Environmental Protection Agency (EPA) published a memorandum titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. This guidance comes at a time when the Coronavirus Disease 2019 (COVID-19) has upended ‘business as usual’ throughout the country and the world. Consumers empty shelves of hand sanitizer, health care workers … Continue Reading

Is the Clock Ticking on Coal Ash?: Key Deadlines and Takeaways from EPA’s Recent CCR Rule Revisions

On November 4, 2019, the U.S. Environmental Protection Agency (the “EPA”) proposed to amend the 2015 coal combustion residuals (“CCR”) rule. The proposal is part of a multi-step effort by EPA to address CCR, including a second proposal announced on the same day addressing effluent guidelines coal-fired power plants. The EPA has already drawn sharp … Continue Reading

Weathering the Storm: Mitigation of Environmental Risks Caused by Extreme Weather

Imagine that you are environmental, health, and safety (“EHS”) counsel or general counsel for a company dealing with a natural disaster. The company’s facilities are only partially functional, employees have lost their homes, and business unit functionality has been severely disrupted. You find yourself managing the myriad demands of the federal, state, and local environmental … Continue Reading

Making Lemonade Out of Lemons: Opportunity Zones, Brownfields Redevelopment, and Environmental Considerations in Real Estate Deals

From vapor intrusion systems to rooftop solar; green building to pollution legal liability insurance, environmental and real estate go hand-in-hand. Environmental issues are routine in all types of real estate transactions, no matter the size, location, or nature of the property and can potentially impact the land (including subsurface), the building, or both. Many of … Continue Reading

Five Questions Likely to Flow From ‘Water-to-Water’ Cases

In two recent decisions, Hawai’i Wildlife Fund v. County of Maui and EQT Production v. Department of Environmental Protection, courts have considered the nuances of “water‐to-water theory” and what constitutes a single discharge. While these cases may seem particularly distinct, one decided in the U.S. Court of Appeals for the Ninth Circuit regarding discharges into … Continue Reading

Overview of Coal Ash Disposal, Regulation and Beneficial Use

According to the U.S. Energy Information Administration, the commonwealth of Pennsylvania is the largest generator of coal ash in the United States. Pennsylvania is home to roughly 100 coal ash disposal facilities, three of which have been classified as “high hazard” by the U.S. Environmental Protection Agency (EPA). Throughout the country, numerous electric generating facilities … Continue Reading

In a Historic Decision to Ban All Metals Mining, El Salvador Appears to Have Closed the Door on OceanaGold

On March 29, 2017, legislators in El Salvador passed a much-anticipated bill prohibiting all mining for gold and other metals. The results of the vote were unanimous and cross-party: 69 in favor, none against, and no abstentions. The bill makes El Salvador the first country in the world to institute such a blanket ban on … Continue Reading

‘Arsenal Coal’ Exception and the Status of Pre-Enforcement Reviews

In two decisions issued at the end of 2015, the Pennsylvania courts increased uncertainty regarding the breadth of the Arsenal Coal exception and status of pre-enforcement reviews. As a general rule, a regulated entity may only challenge regulations when the regulator imposes those regulations on the entity in a permit or enforcement action. In Pennsylvania, pre-enforcement review … Continue Reading

California Public Utilities Commission’s Successor Net Metering Decision and Trends in Rate-Making

On January 28, 2016, by a 3-2 vote, the California Public Utilities Commission (“CPUC”) agreed to extend California’s net metering program. The CPUC’s decision rejected proposals by three of the state’s major utilities (Pacific Gas &Electric Co., San Diego Gas & Electric Co., and Southern California Edison) to decrease the financial credit received by eligible … Continue Reading

Valuation of Distributed Solar

Powering your home with clean energy generated from the solar panels on your roof and selling the excess energy to the utility are appealing prospects to those attuned to environmental, energy efficiency, and self-sufficiency considerations. It is not hard to see why solar distributed generation (“DG”) has moved into the social and political electricity spotlight … Continue Reading

EPA Delays Finalization of 2014 Renewable Fuel Standards

Last Friday, November 21, the U.S. Environmental Protection Agency (“EPA”) said it will defer its 2014 applicable percentage standards under the Renewable Fuel Standard program. The proposed standards rule, issued by EPA in November 2013, requires U.S. refiners to add 15.2 billion gallons of renewable fuels to the nation’s fuel supply in 2014. EPA noted … Continue Reading

Environmental Regulation and Investor State Dispute Settlement Clauses – OceanaGold and El Salvador

Investor state dispute settlement (“ISDS”) clauses in bilateral and regional investment treaties enable foreign corporations to sue a host country regarding regulations, policies, or court decisions. ISDS clauses were originally included in trade agreements and investment treaties in order to protect businesses that invest in foreign jurisdictions where legal and political systems are not robust. … Continue Reading

Cross-Border Renewable Energy Projects: Sustainable Development and Investor Protection

Cross-border renewable energy development is a rapidly growing share of the more than $200 billion per year renewable energy industry. Balancing the interests of investors seeking regulatory certainty with the interests of states in environmental protection is a significant source of potential conflict. In a joint publication by two committees in the ABA Section of Environment, … Continue Reading

Incentives and Legal Risks for Green Building in Pennsylvania

In this month’s Pennsylvania Law Weekly column, I discuss the incentives and legal risks for green building in Pennsylvania. Co-authored with Ana Montalban of Greenberg Traurig’s Public Finance practice, the article gives an overview of the U.S. Environmental Protection Agency’s proposed Clean Power Plan as well as some of the ways in which Pennsylvania has … Continue Reading
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