Tag Archives: GT Insight

Pa. Supreme Court Considers the Trial Court’s ‘Gatekeeper’ Role Under Frye

On July 21, 2020, the Pennsylvania Supreme Court issued an anticipated decision in Walsh v. BASF Corp, in which it considered the trial court’s role as the “gatekeeper” for expert testimony, tackling again the state’s application of the Frye test—as opposed to the Daubert test most frequently applied in federal courts and a majority of … Continue Reading

McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not

Confusion permeates the public arena as to what the U.S. Supreme Court recently did – and didn’t do – by ruling in favor of the Muscogee (Creek) Nation, a federally recognized Native American tribe, and against the state in McGirt v. Oklahoma. Not since a grinning incumbent President Harry S. Truman hoisted The Chicago Daily … Continue Reading

UK’s Industrial Energy Transformation Fund Grants Now Available to Manufacturing Companies and Data Centre Operators

As of 20 July 2020, Phase 1 of the UK’s Industrial Energy Transformation Fund (IETF) is open for applications for grants, according to the Department for Business, Energy and Industrial Strategy (BEIS). The IETF, announced in the UK’s 2018 autumn budget, is designed to assist the transition of high energy use businesses into a lower … Continue Reading

FERC Approves the Overhaul of PURPA Regulations

On July 16, 2020, the Federal Energy Regulatory Commission (FERC or the Commission) approved a Final Rule revising the Commission’s regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA) (See a prior GT Alert for more details on PURPA and FERC’s overhaul). The Final Rule will take effect 120 days after its publication … Continue Reading

Navigability: It’s Not Just for the Federal Clean Water Act Anymore

A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways. No, we do not reference the U.S. Supreme Court’s latest Clean Water Act decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, __ U.S. __ (2020) from May, where six of the nine justices held … Continue Reading

Price-Anderson Act Removal of Litigation Involving a “Nuclear Incident”

“Configuration of terrain is an aid to the army. Analyzing the enemy, taking control of victory, estimating ravines and defiles, the distant and near, is the Tao of the superior general.” Sun-tzu, The Art of War 214 (Ralph D. Sawyer trans., Westview Press 1994). While the use of Sun-tzu’s strategy dramatizes a litigator’s role, the … Continue Reading

EU Opens Consultation on Rules for Transboundary Plastic Waste Shipments

The European Commission has opened a consultation on the adoption of amendments (currently available in draft form) to the European Union’s law on the transboundary shipment of waste. These amendments are intended to allow the EU to give effect to recent changes to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the … Continue Reading

European Parliament Adopts Criteria for Sustainable Investments

The European Parliament has adopted (as of 18 June 2020) new legislation on sustainable investments. The new law was published in the Official Journal of the European Union last week and will come into effect on 12 July 2020. It sets out six environmental objectives and permits economic activities of investors and undertakings to be labelled … Continue Reading

FERC Denies Anbaric Complaint, Announces Technical Conference to Examine Grid Access for Offshore Wind Projects

On Nov. 18, 2019, power line developer Anbaric Development Partners, LLC (Anbaric) filed a complaint before the Federal Energy Regulatory Commission (FERC) under sections 206 and 306 of the Federal Power Act against regional grid operator PJM Interconnection, L.L.C. (PJM), claiming that PJM’s transmission interconnection procedures in Sections 36.1.03 and 232 of the PJM Open … Continue Reading

Who is a Customer-Generator? Uncertainty Abounds for the Pennsylvania PUC

Last month, 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 sources such … Continue Reading

Tenant Insolvencies in the UK and Contaminated Land Liability Risks Due to COVID-19

The negative economic effects resulting from efforts to mitigate the spread of Coronavirus Disease 2019 (COVID-19) have put financial pressure on many businesses.  In the worst such cases, businesses may face the risk of insolvency.  In an environmental law context, this raises the question of what the potential implications may be for those businesses’ environmental … Continue Reading

Changes to Environmental Provisions of the USMCA Trade Agreement

The original text of the United States-Mexico-Canada Trade Agreement (“USMCA”) was amended by the Parties to the Agreement to clarify certain commitments made with respect to environmental and trade matters.  These amendments sought to clarify that the Agreements listed below could not be used to impair, modify or reduce the rights of investors and their investments … Continue Reading

Presidential Executive Order on U.S. Bulk Power System Equipment from ‘Foreign Adversaries’

On May 1, 2020, President Trump issued an Executive Order (EO) declaring a national emergency due to “foreign adversaries” that are “creating and exploiting vulnerabilities” in the U.S. bulk-power system (BPS). The EO prohibits “transactions initiated after May 1, 2020” for BPS electric equipment with voltages 69 kilovolt and above if the transaction would pose an undue … Continue Reading

Is There Still a Place for Supplemental Environmental Projects in Pennsylvania?

SEPs, which permit a defendant to undertake an environmentally beneficial project in lieu of paying penalties—or in exchange for reduced penalties—have been seen as benefiting defendants, enforcement agencies and communities at the same time. SEPs have given enforcement agencies and defendants additional flexibility in negotiating consent decrees and settlement agreements, while also providing communities potentially … Continue Reading

UK Environment Agency Continues to Issue Coronavirus Disease 2019 Enforcement Suspensions

In addition to the recent temporary enforcement suspensions (see April 16 Alert and April 21 Alert) in response to the ongoing disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic, the UK’s Environment Agency (EA) has published further temporary regulatory position statements (RPS). Like the EA’s general pre-COVID-19 RPS, the new COVID-19-specific RPS are declarations by the EA (the primary … Continue Reading

FERC Upholds June 2018 PJM Minimum Offer Price Rule Order Thwarting State Subsidies

The Federal Energy Regulatory Commission (FERC) issued two orders denying rehearing and offering some clarity on the PJM Interconnection, LLC (PJM) Minimum Offer Price Rule (MOPR), a construct that potentially prevents new capacity-market sellers from depressing prices by offering at reduced prices to clear a capacity auction. The April Orders relate to FERC’s June 2018 order, which … Continue Reading

Supreme Court: Pollutants Reaching Navigable Waters Through Groundwater May Require Permit Under Clean Water Act

Rejecting the Trump administration’s novel 2019 interpretation that the Clean Water Act never requires permits for pollutant discharges to groundwater, the United States Supreme Court handed down, on April 23, its eagerly awaited decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. The 6-3 majority held that Section 301 of the Clean … Continue Reading

FERC Clarifies and Reaffirms ADIT Rules

The Federal Energy Regulatory Commission (FERC) issued Order 864-A on Public Utility Transmission Rate Changes to Address Accumulated Deferred Income Taxes (ADIT). Order No. 864-A addresses requests for clarification and rehearing concerning the obligation of public utilities with either transmission formula rates or transmission stated rates to return excess ADIT arising from the reduction in the … Continue Reading

Mexican Official Standard NOM-017-CRE-2019: Clean Energy Measurement and Compliance Assessment

The Energy Regulatory Commission (Comisión Reguladora de Energía, “CRE”) published Mexican Official Standard (Norma Oficial Mexicana) NOM-107-CRE-2019, Methods for measuring variables to calculate the percentage of clean energy and compliance assessment procedure (the “NOM”). We discuss the background, purpose, scope of application, measurement methods, compliance assessment, and oversight authority of the CRE. Read the full … Continue Reading

UK Environment Agency Four Further Coronavirus Disease 2019 Enforcement Suspensions

In addition to the three new temporary regulatory position statements (RPS) discussed in a previous GT Alert, in response to the ongoing disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic the UK’s Environment Agency (EA) has published four new temporary regulatory position statements (RPS). Like the EA’s other RPS, the four new COVID-19 specific … Continue Reading

Implementation of the Dutch Environment and Planning Act (Omgevingswet) Postponed Due to Pandemic

On 1 April 2020 the Dutch minister for Environment and Housing (Minister voor Milieu en Wonen) announced that implementation of the Environment and Planning Act is postponed. Implementation of the new legislation was planned for 1 January 2021, but according to the minister, postponement is inevitable due to the ongoing outbreak of Coronavirus Disease 2019 … Continue Reading

UK Environment Agency – Coronavirus Disease 2019 Enforcement Suspensions

In response to the disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic, the UK’s Environment Agency (EA) has published three new temporary regulatory position statements (RPS). Like the EA’s other RPS, the three new COVID-19 specific RPS are declarations by the EA (the primary environmental regulator and enforcement authority for England and Wales) that … Continue Reading
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