Consulting With Native American Tribes on Energy and Infrastructure Development: Strategies for Reducing Project Risk

Posted in Compliance, Energy, Environment, GT Alert, Infrastructure, NEPA

“Tribal consultation” refers to the federal government’s legal obligation to consult with Native American tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in.

The project need not be on tribal land for the tribal consultation requirement to apply. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other federal laws, mandate that the lead agency on each project must consult with all affected Indian tribes, on a government-to-government basis. This is true whether the project is on public or private land. The rule of thumb is that if a project needs federal permission to proceed, the federal agency considering it must identify the tribes in the project area and consult with them in a meaningful fashion before making any final decisions.

Click here to read the full GT Alert by Troy Eid, co-chair of Greenberg Traurig’s American Indian Law Practice.

Thumbs Up for Energy Storage: FERC Approves PJM and SPP Proposals Implementing Order No. 841

Posted in Energy, FERC, GT Alert, Regulatory

On Oct. 17, 2019, the Federal Energy Regulatory Commission (FERC) gave PJM Interconnection, L.L.C. and Southwest Power Pool the green light to implement their energy storage proposals to comply with FERC’s Order No. 841. FERC found that these proposals reduce barriers to market participation by storage resources by allowing them to be compensated fairly when delivering various and unique operational capabilities and services. But stay tuned – while these orders are important progress, integration of storage resources into the wholesale market will be complex. Indeed, FERC also ordered PJM and SPP to make compliance filings to include specific rules for minimum run-time requirements in their tariffs.

Click here to read the full GT Alert.

After Flint, EPA’s New Lead Rule Proposal May Not Satisfy Critics

Posted in Clean Water Act, Compliance, Contamination, EPA, Safe Drinking Water Act, Water, Water quality

In the wake of the drinking water crises in Flint, Michigan and elsewhere, the U.S. Environmental Protection Agency (EPA) proposed a rule on Oct. 10, 2019, that would impose new lead requirements on drinking water systems. If finalized, the new rule would mark the first change to the lead and copper rule (LCR) since 1991.

Drinking water systems throughout the country still rely on lead service lines to connect treatment plants to consumers. Water treatment chemicals can cause lead to leach from service lines. In 1991, the EPA adopted a rule under the Safe Drinking Water Act (SDWA), requiring drinking water systems to implement corrosion control measures when the lead level is above the “action level” of 15 parts per billion (ppb). Tap water samples must be collected, and if more than 10 percent of tap water samples exceed the lead action level of 15 ppb, then water systems are required to take actions. This method allows some percentage of the customer taps to exceed the action level, without the water system having to act.

The proposed rule retains the 15-ppb action level, but requires a more comprehensive response. For example, water systems must replace the portion of the lead service line they own whenever a customer replaces her portion of the line. The proposed rule also introduces a trigger level of 10 ppb that requires more proactive planning in communities with lead service lines. In addition, the proposed rule will require development of lead service line inventory and more robust sampling and risk communication.

Curiously, however, the proposal would decrease the annual percentage of lead service lines a water system must replace when its tap water exceeds the 15-ppb action level: the existing rule requires utilities to replace seven percent of their lead service lines annually, while the proposed rule would reduce that percentage to three.

While the EPA argues that the new requirements, along with the 10-ppb trigger, will reduce the levels of lead in drinking water, critics charge that the changes do not go far enough, and that reducing the annual replacement rate is wrong.

The public will have 60 days from the date of the proposed rule’s publication in the Federal Register to submit comments (in Docket No. EPA-HQ-OW-2017-0300).

For more on water quality, click here.

Recent Executive Orders May Affect Regulatory Guidance

Posted in Articles, Executive Orders, Pennsylvania, Regulatory

In early October, President Donald J. Trump issued two executive orders aimed to further his administration’s stated goal of reducing both executive agencies’ power and burdens on regulated entities. Both executive orders will affect how federal agencies issue informal guidance documents, through which agencies provide interpretation or clarification of regulations they have promulgated.

The first, the “transparency and fairness” executive order, clarifies that guidance documents may not be used as a basis for imposing requirements or standards of conduct on any regulated entity. It also states that agencies may only take enforcement actions or engage in adjudication in reliance on standards of conduct that have been made publicly known, and may not do so in ways that may cause “unfair surprise.” In addition, prior to taking any action having a legal consequence as to any regulated person or entity, an agency must give that person or entity an opportunity to contest enforcement.

The second, the “improved agency guidance documents” executive order, requires agencies to post all guidance documents online, in a searchable format, along with a disclaimer that they are simply guidance and lack the force and effect of law. As part of this process, agencies are to review current guidance to determine whether it should be rescinded; any guidance not posted online as required within 120 days will be considered rescinded. Additionally, the Office of Management and Budget will establish procedures whereby the public may petition for withdrawal or modification of any particular guidance document. Perhaps the most substantial change required by the executive order is the requirement that no “significant” guidance documents may be issued without being subject to a period of public notice and comment, akin to the Administrative Procedure Act’s (APA) requirement for agencies issuing formal, binding regulations. Significant guidance documents must also be reviewed by the Office of Information and Regulatory Affairs before issuance.

Read more from my article in this week’s edition of Pa. Law Weekly in The Legal Intelligencer, 42 Pa. L. Weekly 43 (October 22, 2019), by clicking here.


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.