USEPA Stormwater Owner/Developer Questionnaires

Posted on October 20, 2010 by Caleb Holmes

From Hamilton Hackney of GT Boston:

As one of a number of recent stormwater initiatives, USEPA is developing regulations to control post-construction stormwater discharges from commercial properties, which would represent a major expansion of the current stormwater regulatory program.  As part of that process, USEPA is sending out mandatory questionnaires to 3,000 construction companies and commercial property owners to gather information on existing stormwater management practices and costs.  USEPA has sent these questionnaires to "entities believed to be owners of point source discharges that are involved with new construction, development and redevelopment of residential, non-residential, industrial, and commercial properties and transportation projects."  In addition to the owner/developer questionnaires, USEPA has issued questionnaires to MS4 operators, transportation-related MS4 operators and NPDES permitting authorities.

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Department of Energy, Google Announce Wind Farm Projects

Posted on October 14, 2010 by Caleb Holmes
 
In recent weeks, the Department of Energy (DOE) and Google have announced new projects that are intended to spur the development of a United States offshore wind industry.  DOE first announced a new initiative program, the Offshore Wind Innovation and Demonstration Initiative (OSWInD Initiative), to secure the establishment of an offshore wind industry for the United States.  In its draft strategic work plan, "Creating an Offshore Wind Industry in the United States: A Strategic Work Plan for the United States Department of Energy, Fiscal Years 2011-2015" ("Strategic Work Plan"), the DOE sets target goals for 54 gigawatts of deployed offshore wind capacity by 2030 at a cost of 7 to 9 cents per kilowatt hour and an interim target goal of 10 gigawatts at 13 cents per kilowatt hour by 2020.  In order to reduce the costs and timing for the deployment of offshore wind projects, the Strategic Work Plan sets forth three Focus Areas, including Technology Development, Market Barrier Removal and Advanced Technology Demonstration Projects. The Strategic Work Plan further identifies seven major activities to be administered within the Focus Areas including innovative turbines, innovative balance of system, computational tools and test data, resource planning, siting and permitting, complementary infrastructure and advanced technology demonstration projects.  The DOE has requested comments on the Strategic Work Plan by October 29, 2010.
 
On October 6, 2010, Secretary of the Interior Ken Salazar and Cape Wind Associates, LLC officially signed our country's first commercial lease for offshore wind energy development on the Outer Continental Shelf (OCS).
 
On October 12, 2010, Google announced on its blog that it was going to be investing (along with other investors) in an offshore wind transmission project referred to as the Atlantic Wind Connection (AWC). The AWC project would span approximately 350 miles between New Jersey and Virginia and could connect up to 6,000MW of offshore wind turbines for delivery to land based transmission systems and could ultimately serve 1.9 million households.
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Southern District of Florida Overrules Corps' Attempt to Broaden its Wetlands Jurisdiction Through the Stockton Rules

Posted on October 11, 2010 by Al Malefatto

      On September 28, 2010, U.S. District Judge K. Michael Moore of the Southern District of Florida entered an order setting aside and enjoining enforcement of the U.S. Army Corps of Engineers’ guidance documents (Issue Paper Regarding “Normal Circumstances”, ECF No. 18-22; Memorandum for South Atlantic Division Commander, ECF No. 18-23), which together had significantly modified the Corps’ interpretation of its wetlands regulation that states: “[W]aters of the United States do not include prior converted cropland.” 33 C.F.R. §328(a)(8). In New Hope Power Company and Okeelanta Corporation v. United States Army Corps of Engineers and Steven L. Stockton, Judge Moore ruled that the documents, cumulatively referred to as the “Stockton Rules” (after the Corps’ Director of Civil Works, Steven L. Stockton) constitute new legislative and substantive rules purporting to extend the Corps’ jurisdiction over prior converted croplands (“PCC”), and were procedurally improper for not following the notice-and-comment procedures of the federal Administrative Procedure Act.

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FTC Proposes Revised Guidance on Green Marketing Claims

Posted on October 7, 2010 by Caleb Holmes
The Federal Trade Commission ("FTC") has proposed revisions to its Guides for the Use of Environmental Marketing Claims, better known as the "Green Guides."  The Guides provide guidance -- they are not mandatory, although they are issued pursuant to Section 5(a) of the FTC Act and subject to enforcement actions -- to companies that wish to market their products as "environmentally friendly" in some way.  The guidance includes general principles applicable to all green claims, as well as specific guidance on certain claims.  The revisions update guidance on claims already addressed in the Guides, as well as include guidance on claims not previously addressed.  Comments on the proposed Green Guides are due December 10, 2010. 
 
The Green Guides were first issued in 1992, in response to an explosion of green marketing.  The Guides were subsequently revised in 1996 and 1998, but have not been revised since.  In 2007, the FTC announced its intention to revise the Green Guides, and held a series of public workshops.  Responding to stakeholder comments from these workshops and its own consumer perception study, the FTC has proposed Guides revising its general environmental claims, certifications and seals of approval, "degradable" claims, "compostable" claims, "ozone-safe/ozone-friendly" claims, "recyclable" claims, and "free-of/non-toxic" claims.  This more specific guidance should make it easier for companies to follow the guidance while also eliminating bogus claims.  The proposed Guides also provide guidance on the additional claims -- "renewable energy," "renewable materials," and "carbon offsets" claims -- which were not previously addressed.  The revised guidance is more in line with the green marketplace of today.  The FTC has summarized the proposed revisions here, and a more complete synopsis of the the revisions, prepared by Justin Prochnow of GT Denver, is available here. 
 
The renewed interest in the Green Guides has also brought a significant increase in enforcement actions brought by the FTC since 2007.  That trend should only continue with the release of the proposed revisions. 
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