Articles Posted in Environmental

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In U.S. Repeals Longstanding Ban on Export of Crude Oil, my Pillsbury colleagues Dan LeFort, Paul Marston, Tom Campbell and I discuss the President’s recent signing of the Consolidated Appropriations Act, 2016, an Act that funds the Federal government through fiscal year 2016, and its repeal of the 40-year ban on the export of crude oil.

Addition Source:  Lifting of 40-Year Statutory Crude Oil Export Ban Signed into Law; Environmental and Regulatory Provisions in the Omnibus Appropriations Act of 2016

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The 2016 Consolidated Appropriations Act (H.R. 2822) is divided into several divisions, reflecting separate appropriations acts. A cursory reading of this massive legislation discloses a few environmental and regulatory provisions of interest:money

  • Almost all of these appropriations bills included language specifically forbidding the use of federal funds by the agencies to indirectly lobby the Congress on legislative actions;
  • $200,000,000 is appropriated to the Corps of Engineers for the administration of its permitting and regulatory programs regarding navigable waters and wetlands;

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On Friday, the Court of Appeals for the District of Columbia declined to entertain EPA’s argument that it could dictate venue for review of its decision by including within the decision that it would have “nationwide scope or effect.” Pursuant to Section 307(b)(1) of the CAA, venue over challenges to EPA actions lie exclusively with the Court of Appeals for the District of Columbia only if (1) the final action taken by EPA is “nationally applicable” or (2) EPA found that its final action was based on a determination of “nationwide scope or effect” and it published this finding. Ultimately, the Court of Appeals, in Dalton Trucking, Inc., et al., v. EPA, et al., held that venue was not proper in the District of Columbia and dismissed the petitions for review of EPA’s authorization of the California Air Resources Board (CARB) regulations.

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In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorney David Farabee discusses the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).

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For several years, EPA has encouraged the regulated community to audit their facilities for compliance with environmental laws, and to self-disclose to EPA any violations noted in the audit to obtain reductions to or even eliminate altogether civil penalties if the report is made on a timely basis and demonstrates that the violations are being corrected promptly. epa web portalThese policies were announced in April 2000 with a special policy made available to small businesses (the Small Business Compliance Policy). In 2008, the benefits of the policy were extended to new owners to encourage them to undertake an environmental audit of the facilities they were purchasing to address and correct existing environmental violations and to take advantage of the opportunity provided by the Audit Policy to embark upon a “fresh start” with EPA. The result of these polices was to dramatically expand the scope of environmental auditing, which, EPA has concluded,  resulted in

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For contractors who often subject to one or more of federal environmental laws or regulations, below is a brief report on some the significant environmental law and administrative cases decided since late June of 2015 by jurisdiction:

District of Columbia

Energy Future Coalition, et al. v. EPA, et al., 793 F.3d 141 (D.C. Cir. July 14, 2015) — The U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles, 40 C.F.R. § 1065.701(a), concluding that EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.

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Developers subject to the Federal Power Act (FPA) should carefully consider the implications of the U.S. Court of Appeals for the District of Columbia Circuit’s recent opinion on the scope of the “municipal preference” under Section 7(a) of the FPA. The Court, in HydroelectricWestern Minnesota Municipal Power Agency, et al., v. FERC, recently considered the breadth of the “municipal preference” in Section 7(a) of the FPA, including the meaning of “municipality,” and declined to support the Federal Energy Regulatory Commission’s “geographic proximity test” for municipalities to qualify for the preference. Under the Court’s ruling, a municipality qualifies for the municipal preference regardless of their proximity to the location of the development. Developers may now be exposed to greater competition for developments with municipalities having a trump card because they qualify for the municipal preference.  As one would hope, the Court of Appeals restated the importance of the Court’s review FERC’s interpretation under the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984).  The opinion, of course, also reflects the Supreme Court’s use of Chevron in deciding a number of important cases the past two terms. This opinion may also result in FERC being more careful in the future.

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A U.S. District Court  for the District of Columbia has joined the debate regarding whether the U.S. Fish and Wildlife Service is required to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321–4347 (NEPA), when designating critical habitat based upon the requirements of the Endangered Species Act (ESA). A geographically based distinction in agency policy has resulted from a split in the U.S. Courts of Appeals on the question of whether an environmental impact statement (EIS) is required for critical habitat designations. The Tenth Circuit Court of Appeals, in Catron County Board of Commissioners, New Mexico, v. United States Fish and Wildlife Service, et al., 75 F.3d 1429, 1436 (10th Cir. 1996), held that the Fish and Wildlife Service must comply with NEPA when designating critical habitat under the ESA. 75 F.3d at 1436. By contrast, the Ninth Circuit, in Douglas County v. Babbitt, et al., 48 F.3d 1495, 1502-07 (9th Cir. 1999), held that the Fish and Wildlife Service does not have to comply with NEPA when designating critical habitat. NEPA is generally understood to be a “procedural statute” that is designed to ensure that federal agencies make fully informed and well-considered decisions. While the U.S. Court of Appeals for the District of Columbia circuit has not had an occasion to rule on this NEPA issue, on November 13, 2015, the U.S. District Court for the District of Columbia issued a Memorandum Opinion agreeing with the Ninth Circuit that NEPA is not applicable to critical habitat determinations. The case is Otay Mesa Property, L.P., v. United States Department of the Interior.  Continue Reading ›

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In Sixth Circuit Rejects Clean Air Act Preemption of State Common Law Claims: Four Things to Know, Pillsbury attorneys Matt Morrison and Bryan Stockton explore the Six Circuit Court of Appeals recent rejection of Clean Air Act, 42 U.S.C. §§ 7401 et seq. (CAA), preemption of state common law claims in Merrick, et al. v. Diageo Americas Supply, Inc. and Little et al. v. Louisville Gas & Electric Company; PPL Corporation. The takeaway is that a facility that is otherwise in compliance with CAA emission requirements can still face lawsuits by neighboring landowners for traditional torts such as nuisance and trespass. Merrick and Little add to the foundation of precedent across the Second, Third, and Sixth Circuits, and Iowa Supreme Court.

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The “Conflicts Minerals” rule  was enacted, with very little debate, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  This rule places new regulatory requirements on the nation’s financial system in the wake of the 2008 economic emergency.  To many observers, the most troublesome aspect of the rule involves the federal government’s authority to compel the regulated community—in this instance, companies that may have some connection to the civil wars in the Congo—to label what they do in censorious terms as part of public SEC filings.  In particular, the SEC’s conflict minerals  rule purports to compel certain disclosures affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo. How far can the government go, consistent with the First Amendment, to require companies and corporations to say what the government rules that that must say?

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