E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

My March column in the Pennsylvania Law Weekly was delayed untl April 10.  35 Pa. L. Weekly 336.  It discusses the Supreme Court's decision in Sackett v. Environmental Protection Agency, No. 10-1062 (U.S. Mar. 21, 2012).  Sackett holds that respondents on enforcement orders under the Clean Water Act may obtain immediate, pre-enforcement judicial review of the order, or at least of the jurisdiction of EPA to issue an order.  The United States had argued that Congress intended Clean Water Act orders to be like orders under the Comprehensive Environmental Response, Compensation and Liability Act that are insulated from pre-enforcement review by section 113(h) of CERCLA. 

To read a copy of the column click here.

Jerry Stouck of GT Washington and David Weinstein of GT Tampa offer another take on Sackett in a GT Alert that you will find by clicking here.

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from Gregory R. Tan of GT Denver

On February 16, 2012, EPA issued the Final 2012 NPDES General Permit for Stormwater Discharges from Construction Activities ( the “Construction General Permit” or “CGP”), which replaces EPA’s 2008 CGP.  The new Construction General Permit incorporates the requirements of the Construction and Development Rule issued by EPA in December 2009 at 40 C.F.R. Part 450 and effective on February 1, 2010.  Along with the new requirements of the Construction and Development Rule, EPA is also requiring electronic filing of permit authorization documents, and has rolled out a revised stormwater pollution prevention plan (“SWPPP”) template and other guidance documents to aid permittees in complying with the new requirements.  New Construction General Permit requirements incorporated from the Construction and Development Rule include measures for erosion and sedimentation control (including a natural buffer requirement), soil stabilization, dewatering, and pollution prevention, but the new CGP does not contain the numeric turbidity limit originally found in the Construction and Development Rule. 

The Construction and Development Rule originally required construction sites 10 or more acres in size to meet a numeric standard for turbidity of 280 nephelometric turbidity units (“NTUs”) and conduct sampling of stormwater discharges to confirm compliance with the standard.  However, EPA stayed the effectiveness of the numeric turbidity standard on November 5, 2010, after petitions for reconsideration pointed out errors in the methodology upon which the numeric limit was based.  EPA has since published a Notice seeking additional data relevant to establishing a numeric turbidity limit with an aim to correct it and re-incorporate it into the Rule.

Meanwhile, EPA and states are required to incorporate the remaining requirements of the Construction and Demolition Rule into Construction General Permit renewals.  EPA has suggested that states needing to renew their Construction General Permits before EPA issues a corrected numeric turbidity limit do so without a numeric limit, but EPA also recommends that these states consider issuing their CGPs for a shortened time period so the corrected limit can be incorporated sooner than in five years. 

EPA is hosting a free webinar on the new EPA Construction General Permit on Wednesday, March 21, 2012, from 1:00 to 3:00 Eastern.  Any interested party can register on EPA’s website.  The two hour presentation will provide an overview of the 2012 CGP, including the new Construction and Development requirements, and will also address electronic filing requirements, available SWPPP templates and other helpful resources. 

EPA’s CGP is effective in states and territories where EPA is the permitting authority, including Idaho, Massachusetts, New Hampshire, New Mexico, the District of Columbia, Puerto Rico, other U.S. territories and most Indian lands. In other states, a state general permit will apply.

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from Reggie L. Bouthillier, Kenneth Metcalf*, Maribel N. Nicholson-Choice, and Todd Sumner of GT Tallahassee

The 2012 Florida Legislative Session focused on the redistricting process and passage of the State budget. Despite these challenging priorities, the Legislature passed several bills addressing energy policy, environmental regulation and growth management that are intended to benefit businesses and industries throughout Florida. To read our Alert providing a summary of the energy, environmental and growth management legislation passed by Florida's Legislature in the 2012 Session, click here.

*Kenneth Metcalf is Director of Planning and is a certified planner by the American Institute of Certified Planners.

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In his January 18 post, Michael Cooke of GT Tampa wrote about the court-ordered stay of the Cross State Pollution Rule.  Mr. Cooke provides details of the arguments made during subsequent briefing, and provides an analysis of what to expect next in the judicial review process, in this GT Alert.

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February's column in the Pennsylvania Law Weekly / Legal Intelligencer considers the "environmental debts" that often arise in transactions or otherwise.  Managing Environmental Obligations:  Tracking "Environmental Debtors", 35 Pa. L. Weekly 196 (Feb. 28, 2012).   Some undertake obligations to clean up, to operate facilities, to indemnify, or to maintain institutional controls.  Others receive rights to enforce those obligations.  Who owes a client a debt?  Whom does the client owe?  When should claims be accelerated?  When should they be deferred? 

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From Michael Cooke of GT Tampa:

On Wednesday, January 18^th, by letter to Senator Ron Wyden of Oregon, the EPA advised that it would exercise enforcement discretion with respect to the 2011 notification deadlines for existing boilers and incinerators that have passed while the EPA’s administrative stay of its March 2011 new rules has been pending. This step is being taken due to the January 9, 2012, decision of U.S. District Court Judge Paul Friedman which vacated the administrative stay, a decision I discussed in my previous post. After analyzing the court’s decision, EPA has stated that it will issue a “no action assurance letter” shortly that informs sources it will not enforce any of the notification requirements for new or existing boilers that arise under the 2011 rule.   The EPA letter further states that it believes that noncompliance by existing sources with the 2011 rule “would be unlikely to warrant” civil enforcement action by third parties, but, in any event, such an action would require 60-days prior notice to EPA which would give EPA sufficient time to take further steps to address those impacts. With respect to new boilers and incinerators, the EPA concludes that there are no sources subject to requirements other than the notification obligations which now are being reconsidered. But EPA noted that, if it becomes aware of other permitting or compliance challenges for new sources as a result of the stay being vacated, EPA will issue a 90-day stay under the Clean Air Act or a longer stay under the Administrative Procedures Act (“APA”) consistent with the district court’s opinion on stays under the APA. Finally, the letter states that EPA recognizes that industry needs sufficient time to comply with these standards and that, subject to public comment, EPA intends to reset the “compliance clock” when it finalizes the rules which it reproposed last December.

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From Michael Cooke of GT Tampa:

EPA and the federal courts have been busy with air issues in December and January, and the results have created substantial uncertainty for sources planning compliance efforts. These actions include two new air toxics rules for electric utilities (the “Mercury and Air Toxics Standard,” or “MATS”), issued by EPA in mid-December; a federal district court order issued in early January 2012 that vacated and remanded the “Delay Notice” EPA had issued to postpone the effectiveness of the Major Source Boiler MACT and Commercial and Industrial Solid Waste Incineration (“CISWI”) unit standards ; and an order of the U.S. Court of Appeals for the D.C. Circuit staying the effectiveness of the final Cross-State Air Pollution Rule that was issued by EPA on August 8, 2011. These actions affect a wide range of stationary air sources, including cement kilns, electric generating units, solid waste incinerators, and numerous industrial, commercial and institutional boilers. Regulated entities, understandably, are struggling to assess the impacts of them and make appropriate compliance plans. 

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From Melissa Meirink of GT Denver:

The Council on Environmental Quality (CEQ) recently issued draft guidance designed to promote more efficient environmental reviews of projects subject to the National Environmental Policy Act (NEPA). NEPA is a procedural statute that requires federal agencies to consider the environmental impacts of their proposed actions before deciding to adopt a proposal or to take action. NEPA is triggered when there is a major federal action significantly affecting the quality of the human environment. Although the current NEPA-implementing regulations provide methods for preparing efficient and timely environmental reviews, the CEQ's proposed guidance will emphasize and clarify those methods. Specifically, the guidance outlines the following principles for agencies to follow when conducting a NEPA review:

• NEPA encourages simple, straightforward, and concise reviews
• The NEPA process should begin early and should be integrated into project planning
• NEPA reviews should adopt, use, and incorporate existing documents and studies
• Targeted scoping can assist to focus environmental reviews on appropriate issues
• Agencies should develop expeditious timelines for environmental reviews
• Agencies should respond to comments in proportion to the scope and scale of the environmental issues raised

In addition, the draft guidance clarifies that many provisions of the existing regulations referring to an environmental impact statement (EIS) can also apply to an environmental assessment (EA).  The draft guidance also provides measures to eliminate duplication of efforts and to promote better interagency interaction.

The draft guidance would promote a clear and more streamlined environmental review process under NEPA that would benefit agencies, project proponents, and others interested in the NEPA process.  The CEQ is accepting public comment on the draft guidance until January 27, 2012.

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In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I discuss Pennsylvania Senate Bill 1100 and Pennsylvania House Bill 1950.  The bills, which implement many of the recommendations made by Pennsylvania Governor Tom Corbett's Marcellus Shale Advisory Commision, propose significant amendments to Pennsylvania's Oil and Gas Act intended to address Marcellus Shale gas development.

To read the column, click here.

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From Todd Sumner of GT Tallahassee:

On November 10, 2011, the U.S. State Department announced during a press briefing that it was delaying its decision on the proposed Keystone XL oil pipeline in order to assess other pathways through Nebraska. The 1700 mile crude oil pipeline which would run from the Alberta Oil Sands region in Canada and ultimately terminate at refineries along the Texas Gulf Coast would also traverse over the shallow water Ogallala aquifer in Nebraska's Sand Hills region.

While the State Department released the final Environmental Impact Statement for the proposed oil pipeline on August 26, 2011, since that time opposition to the proposed route has expanded including Nebraska Governor Dave Heineman (R) due to the proposed route over the Ogallala aquifer. The Nebraska Governor had already called a special session of the Nebraska legislature for the crafting of pipeline siting/approval legislation that will be further vetted during the week of November 14th. The State Department is now to be looking at alternative routes of the Keystone pipeline that would avoid or minimize impacts to the Nebraska Sand Hills region. The alternative pipeline route review will be conducted as a supplemental environmental impact statement and the State Department's final decision on the proposed pipeline is estimated to conclude sometime following the 2012 presidential election.

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From Adam Silverman of GT Philadelphia:

This week, the Delaware River Basin Commission (“DRBC”) released its final draft natural gas development regulations in anticipation of a final vote on whether the DRBC will adopt the regulations. The vote is scheduled for November 21, 2001. There is some reason to believe that the Commission vote may not be unanimous, which would be a rare occurrence. If adopted, the regulations will end a moratorium imposed on drilling for natural gas within the Delaware River watershed, which supplies water to Philadelphia and New York City. Since first introducing draft regulations in 2010, the DRBC received nearly 70,000 comments from the public, some of which were reportedly incorporated into subsequent drafts of the regulations. 

The final draft regulations would permit the drilling of 300 wells within the watershed, provide setback requirements, and increase financial assurance requirements to, in certain cases, $5MM per well up to $25MM for multiple-well sites. State regulations will determine the construction and operation of individual wells and pads but water sources for well pads require approval by the DRBC. The regulations also limit the discharge and storage of wastewater and fracking fluid within the watershed. The DRBC plans to reassess the regulations after 18 months. 

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In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I discuss United States v. EME Homer City Generation, No. 11-19 (W.D. Pa. Oct. 12, 2011), and Jackson v. EME Homer City Generation, No. 11-28 (W.D. Pa. Oct 13, 2011), and the recurring issues related to the enforcement of the Clean Air Act's new source review (NSR) and prevention of significant deterioration (PSD) programs.

To read the article, click here.

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From Jeffrey Collier of GT West Palm Beach:

On October 21st, the U.S. Forest Service and environmental advocates successfully defended the Clinton administration's Roadless Area Conservation Rule ("Roadless Rule"), winning a decision by the U.S. Court of Appeals for the 10th Circuit requiring a district court to vacate its nationwide injunction against the rule.  See Wyoming v. U.S. Dep't of Agriculture (USDA), No. 09-8075 (10th Cir. Oct. 21, 2011).

The state of Wyoming, with support from the Colorado Mining Association, had won a decision in the U.S. District Court for the District of Wyoming on claims that the Roadless Rule violated the Wilderness Act and the National Environmental Policy Act ("NEPA") by creating de facto wilderness areas and by doing so without following NEPA procedural requirements.  The Roadless Rule eliminated prospects for almost any road construction on about 58.5 million acres of federal land.

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