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

From K.B. Battaglini of GT Houston:

The EPA has announced new standards to reduce volatile organic compound (VOC) emissions from oil and gas operations.  According to an EPA fact sheet, the proposed standards rely upon existing technologies, and are projected to result in a net annual savings to the industry of $30 million.  The existing technologies have two components: implementation of the EPA's Natural Gas STAR program, which contemplates the use of "green completions" of oil and gas wells, and the continued use of "pit flaring" of non-captured emissions.  A green completion is another name for reduced emissions completions, whereby more of the emissions are captured by surface equipment.  Pit flaring involves the ignition of gas-bearing emissions at the surface, typically in a surface pit.  However, while pit flaring would eliminate certain emissions, it introduces hazards and other emissions issues.  Following a public comment period, the EPA will take final action on the proposed standards by Feb. 28, 2012.

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From Todd Sumner of GT Tallahassee:

The United States Fish & Wildlife Service (USFWS) has released its listing decision for the eastern population of gopher tortoise. The USFWS has determined that listing the eastern population of the tortoise as Threatened under the Endangered Species Act (ESA) is warranted, however, it is precluded from doing so at this time due to higher priority actions and a lack of sufficient funds to commence proposed rule development. The western population is already listed as Threatened and will continue to be protected under the ESA. In the interim period of time the USFWS  will place the eastern population of the tortoise on its candidate species list until sufficient funding is available to initiate a proposed listing rule. The USFWS did not provide any time estimate on that front. Candidate species do not receive any statutory protection under the ESA. The gopher tortoise in Florida is still protected under Florida laws and policies implemented  by the Florida Fish and Wildlife Conservation Commission.

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In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I examine Pennsylvania Act 17 of 2011.  Act 17 purports to "repeal" joint and several liability.  Application of the amendment will be difficult in straightforward tort cases.  In cases involving releases of hazardous substances or other environmental claims, Act 17 is just a puzzle.  Whether you think this sort of tort reform is a good or a bad idea, litigation puzzles almost never serve important public policy purposes.  Read the column here.

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From Gene Livingston of GT Sacramento:

The new Director of California's Department of Toxic Substance Control, Debbie Raphael, announced that mid-October is the new target date for new draft regulations to implement California's Green Chemistry Law. The law called for regulations to be in place by January 1, 2011. However, universal opposition last year to the previously proposed regulations rendered that date impossible. Raphael, demonstrating political acumen, has the support of the legislative authors of the law to take the time needed “to get it right.”

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Pennsylvania has entered into a settlement in Chesapeake Bay Foundation v. DEP, No. 2009-116-L (Pa. Envtl. Hearing Bd. July 6, 2011), which will require it to amend its Erosion and Sediment Control General Permit (ESCGP-1).  A erosion and sediment control permit is required under Chapter 102 of the Pennsylvania Code for earth disturbance activities.  The ESCGP-1 provides an expedited permit process for earth disturbance activities associated with oil and gas exploration, production, processing or treatment operations or transmission facilities.  Under the terms of the settlement, the ESCGP-1 will no longer be available for projects in high quality or exceptional value water bodies, in a floodplain or on contaminated land. 

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From Jeffrey Collier of GT West Palm Beach:

On May 2, 2011, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published proposed joint guidance ("Proposed Guidance") describing how the agencies will identify waters regulated pursuant to Section 404 of the Clean Water Act ("CWA").  The Proposed Guidance is intended to clarify and implement the Supreme Court's decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006).  The Proposed Guidance asserts that it is further intended to reaffirm federal jurisdiction over waters that currently lack clear protection under the law, and to provide clearer, more predictable guidelines to reduce uncertainty and delay for businesses and regulators. 

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From Cate Sharp and David Naser of Greenberg Traurig Maher:

The UK Bribery Act 2010 (“the Act”) came into force on July 1, 2011. The Act has broad jurisdictional scope which means that some bribery offences outside the UK, including the corporate offence of failing to prevent bribery, could attract the attention of the UK authorities. 

The Act could have implications for US organisations, including mining and oil companies, which carry on business in the UK, especially those active in emerging markets ranked as being more prone to corruption in Transparency International's Corruption Perception Index. A breach of the Act could lead to criminal penalties including an unlimited fine.

For further details on the implications for US companies please click here to read an earlier GTM article on the Act's jurisdictional scope.

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As we mentioned earlier, Governor Cuomo requested that the New York State Department of Environmental Conservation's ("NYSDEC") Supplemental Generic Environmental Impact Statement ("SGEIS") on horizontal drilling be completed for issuance by July 1, 2011.  On June 30, NYSDEC announced its recommendations from its report, set to be released today.  NYSDEC recommends that the moratorium on fracking be lifted, but that fracking be prohibited in the New York City and Syracuse watersheds, within 500 feet of primary aquifers, and on state-owned land.  Fracking would be allowed on privately held land, subject to "rigorous and effective controls."

These controls would (1) prohibit permits from being issued within 500 feet of a private water well or within 2,000 feet of a public drinking water supply well or reservoir, (2) require a third well casing around each well, (3) require additional spill control for flowback water and a DEC-approved plan for disposing of flowback water and production brine, and (4) require well applicants to disclose all fracking chemicals and consider chemicals that potentially pose less risk. 

Pursuant to the recently passed Water Withdrawal Reporting law, drillers also must obtain a special permit to withdraw large volumes of water.  This permit will impose conditions on water quantity, and require annual reporting on the amount of water being withdrawn or purchased.

UPDATE 1: Although the full SGEIS will not be made available until July 8, NYSDEC has released the Executive Summary, a SGEIS timeline, a document explaining what it learned from Pennsylvania, and a press release detailing who NYSDEC was appointing to its Hydraulic Fracturing Advisory Panel.

UPDATE 2: The full SGEIS can be found here.

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