Administrative Agency Civil Procedure Energy & Utilities

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A double defeat for EPA on regional haze regulations

On Friday, July 15, 2016, the U.S. Court of Appeals for the Fifth Circuit handed the United States Environmental Protection Agency (“EPA”) a stinging double defeat on its partial disapproval of Texas’ regional haze rule (the...more

Environmental Notes - July 2016

CONGRESS FINDS THE FORMULA TO REFORM CHEMICAL REGULATION - The Toxic Substance Control Act (TSCA) is the primary federal law by which the manufacture, import and use of chemical substances are regulated in the United...more

NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego. It’s not exactly...more

If You Don’t Like Nukes, Petition Congress: The D.C. Circuit Affirms the NRC’s GEIR On Nuclear Waste Storage

On Friday, the D.C. Circuit Court of Appeals rejected challenges by several states and the NRDC to the Nuclear Regulatory Commission’s Generic Environmental Impact Statement analyzing the impacts of continued on-site storage...more

California Environmental Law & Policy Update - June 2016

Environmental and Policy Focus - U.S. Supreme Court allows pre-permit challenges to approved jurisdictional determinations - Allen Matkins - May 31 - In a major new legal development for the Clean Water Act's...more

Important Wetlands Permitting News: U.S. Supreme Court Allows Pre-Permit Challenges to Approved Jurisdictional Determinations

In a major new legal development for the Clean Water Act's Section 404 wetlands permitting program, landowners can now challenge the federal government's claim that areas targeted for fill are "waters of the United States"...more

Corps Jurisdictional Determinations Are Final Agency Action: Now What?

In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject...more

Court of Appeal Sustains CPUC's Discretion to Fill Gaps in Statutory Scheme for Intervenor Compensation but Requires CPUC to Limit...

The California Court of Appeal (1st Dist., Div. 4) issued an important decision on April 19, 2016, in New Cingular Wireless PCS, LLC v. Public Utilities Commission, addressing a determination by the California Public...more

FERC Signals Intention to Closely Scrutinize Late Interventions

Movants must clear high hurdle once parties reach settlement in principle. On March 9, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order in Maritimes & Northeast Pipeline, LLC (Maritimes...more

Supreme Court to Hear Appeals on Role of Tribunals in Duty to Consult

The Supreme Court of Canada (SCC) has granted leave to appeal in two cases concerning the ability of a regulatory tribunal to discharge the Crown’s duty to consult. In Hamlet of Clyde River v. TGS-NOPEC Geophysical...more

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power...more

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a...more

Supreme Court Ruling Spurs Energy Storage Possibilities

On January 25, 2016, the Supreme Court issued a landmark decision (“Decision”) -- reversing the D.C. Circuit’s vacatur of Federal Energy Regulatory Commission (“FERC”) Order 745, which provides crucial market incentives for...more

Unlike Keith Richards, I Have Not Fallen Out Of A Tree

Last month, I went out on a limb and predicted that the D.C. Circuit Court of Appeals would not stay the CPP. Today, the Court vindicated my faith in judicial rationality and refused to grant a stay. In a brief order, the...more

Federal Energy Regulatory Commission Details the Evidentiary Support a Gas Storage Company Must Provide to Justify Market-Based...

The Federal Energy Regulatory Commission issued an order on October 15, 2015 in which it addressed the first fully-litigated proceeding where a natural gas storage provider sought authorization to charge market-based rates....more

“Lookout, Here They Come!” Private Causes of Action to Enforce Pennsylvania Pipeline Safety

Pennsylvania pipeline operators may be dealing with allegations of pipeline safety problems brought by private citizens at the Pennsylvania Public Utility Commission (PaPUC or Commission) based on a recent decision. In a case...more

New Challenges for CEQA Review of Development Projects After California Supreme Court Invalidates Greenhouse Gas Analysis and...

In a 5-2 ruling that poses significant hurdles for developers addressing greenhouse gas (GHG) compliance and protected species mitigation under the California Environmental Quality Act (CEQA), the California Supreme Court...more

California Supreme Court Finds Newhall EIR Insufficient, But Partially Upholds Greenhouse Gas Analysis

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. Cal. Dept. of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015). The decision is the first in a...more

Supreme Court Questions FERC Authority to Regulate Electricity Market Demand Response to Bolster Grid Reliability

Ensuring the reliability of the electric power grid in times of extreme weather and other times of peak usage is critical to avoid interruptions in power and black outs. Reflecting on the 2014 Polar Vortex, the paramount...more

Supreme Court Clarifies Limits on Tribunal Participation in Reviews of Its Own Decisions

In an increasingly regulated world, governments have established a litany of administrative tribunals to oversee and administer complex regulatory schemes. Often, applying their specialized expertise, such tribunals...more

No Good Public Policy Goes Unpunished: Superior Court Challenge to Utility's Implementation of CPUC General Order 156 Moves...

The California Public Utilities Commission (“CPUC”) is a state agency vested with considerable constitutional and statutory powers. Historically, the CPUC has wielded these powers primarily in pursuit of its traditional...more

Blog: District Court Compels SEC To Provide “Expedited Schedule” For Issuing Dodd-Frank Resource Extraction Rule — Will Other Rule...

A U.S. District Court has handed a victory to Oxfam America in its efforts to compel the SEC to complete rulemaking on the Dodd-Frank mandate regarding resource extraction disclosures (Section 1504). ...more

Court Rejects 30 Year Eagle Permit Rule on NEPA Grounds

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under...more

Ninth Circuit Finds ESA 60-Day Notice "Adequate" and Resurrects Challenge to Suction Dredge Mining Suit

On August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit reversed a district court order dismissing an Endangered Species Act ("ESA") lawsuit on the grounds plaintiffs provided inadequate notice. Klamath-Siskiyou...more

BP Case May Again Test Limits of FERC’s “In Connection With” Enforcement Jurisdiction

A Federal Energy Regulatory Commission (FERC) Administrative Law Judge last week issued an Initial Decision finding that BP America (BP) and certain related BP entities violated FERC’s Anti-Manipulation Rule. Following a...more

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