Administrative Agency Energy & Utilities Civil Procedure

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California District Court Dismisses ESA Section 7 Case for Failure to Allege that Agency Action Took Place on the "High Seas"

On August 12, a judge for the Northern District of California granted a motion to dismiss claims alleging that a federal agency violated section 7 of the Endangered Species Act (ESA) by failing to consult with federal...more

Fifth Circuit Holds that the Army Corps of Engineers' Jurisdictional Determination Does Not Constitute a Reviewable "Final Agency...

On July 30, 2014, the United States Court of Appeals for the Fifth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) is not a final agency action subject to...more

The SJC Gives “Great Deference” to the Energy Facilities Siting Board. That’s An Understatement

In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in...more

The Slow Grind of Justice for EPA's Carbon Emissions Regulations

It was inevitable that EPA's Clean Power Plan, regulating carbon emissions from existing power plants was going to generate law suits. Even if the suits are ultimately unsuccessful, an injunction against the Plan's adoption...more

Texas Court of Appeals Holds There is No Right Under The Administrative Procedure Act to Seek Judicial Review of a State Agency's...

On July 23, 2014, the Austin Court of Appeals held that Texas trial courts lack subject matter jurisdiction under the Texas Administrative Procedure Act (APA) to review orders by state agencies denying petitions for...more

EPA Re-gains “Green Light” to Regulate Permitting Procedures - D.C. Circuit overturns lower court decisions on EPA permitting...

Two district court orders declaring the federal Environmental Protection Agency acted illegally when it implemented certain permitting procedures for coal mining operations have been vacated by a federal court of appeals....more

Environmental Protection Agency and U.S. Army Corps of Engineers Proposed Rule Defining “Waters of the United States” Under the...

On April 21, 2014, the United States Army Corps of Engineers and the Environmental Protection Agency (collectively the “Agencies”) released a proposed rule to define the scope of waters protected under the Clean Water Act...more

Only When a Permit is Required: The Supreme Court Caps the EPA’s Authority to Regulate Greenhouse Gas Emissions from Stationary...

Utility Air Regulatory Group v. EPA et al. 573 U.S. ____ (2014) - On June 23, 2014, the United States Supreme Court held that the Environmental Protection Agency (EPA) overstepped its authority under the Clean Air Act...more

Water, Water everywhere …

There were two court decisions this week regarding regulation of Maine rivers, one from the Maine Supreme Judicial Court, Watts v. BEP, and one federal, Friends of Merrymeeting Bay v. Hydro Kennebec, LLC. ...more

The Fifth Circuit holds it lacks subject matter jurisdiction to hear petitions for review of Clean Air Act notices of violation

“Final actions” of the EPA under the Clean Air Act are subject to direct review by a United States Court of Appeals. 42 U.S.C. § 7607(b)(1). In a decision issued on July 3, 2014, in Luminant Generation Company, LLC v....more

The Clean Water Act - Is groundwater included?

There has been much controversy in the courts as to whether groundwater can be defined as “navigable waters” under the Clean Water Act. Courts are split on this decision, with equal numbers of rulings on both sides. One...more

More FERC Federalism: D.C. Circuit Affirms FERC’s Jurisdiction Again – New England Power Generators Ass’n v. FERC

On July 8, 2014, the United States Court of Appeals for the District of Columbia Circuit denied the petition for review filed by New England Power Generators Association, Inc. and other market participants’ over four Federal...more

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final...

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing...more

The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation

After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would...more

California Environmental Law and Policy Update - July 2014

Environmental and Policy Focus - Second leg of California bullet-train line approved: SFGate.com - Jun 27: On June 27, 2014, the U.S. Department of Transportation gave its approval for work to begin on the second leg...more

U.S. Supreme Court Restricts EPA Regulation of Greenhouse Gas Emissions

On June 23, 2014, the U.S. Supreme Court issued its widely anticipated decision in Utility Air Regulatory Group v. EPA concerning the U.S. Environmental Protection Agency's regulation of greenhouse gas emissions (GHGs) from...more

New Supreme Court Ruling On EPA Authority Over GHGs – Little Clarification on the 111(d) Regulations

Last week, the United States Supreme Court issued a significant decision in Utility Air Regulatory Group v. EPA, that substantially restricts the authority of the U.S. Environmental Protection Agency (EPA) to regulate...more

Supreme Court Upholds Greenhouse Gas Emmission Limits for Large Industries, but Implementation Questions Remain

On Monday, June 22, the U.S. Supreme Court issued a much anticipated decision in Utility Air Regulatory Group v. Environmental Protection Agency where it affirmed EPA’s authority to impose limits for greenhouse gas (GHG)...more

Federal Agencies Need to Address “Controversial” Social Cost of Carbon in NEPA Cost-Benefit Analysis

A federal district court in Colorado recently issued a decision faulting federal agencies for failing to calculate the social cost of greenhouse gas (GHG) emissions on the basis that such a calculation was not feasible. The...more

PUC Pipeline Case Presents Issue of Who Qualifies as a Public Utility Corporation

A recently filed case before the Pennsylvania Public Utility Corporation (“PUC”) raises the issue of what type of pipeline company qualifies as a “public utility corporation” under Pennsylvania statutes. The term is not...more

EPA & SCOTUS on GHG: EPA’s Proposed Rule on Emissions for Existing Sources Published for Comment & U.S. Supreme Court Makes a...

Since the U.S. Environmental Protection Agency’s (“EPA”) June 2, 2014 revelation of its Clean Power Plan to cut carbon dioxide emissions from existing fossil-fuel powered electric generators (the “Plan”), it has garnered much...more

EPA & SCOTUS on GHG: U.S. Supreme Court Makes a Statement on EPA Authority to Regulate Greenhouse Gases as the Public Comment...

The last few weeks have brought significant developments in the U.S. Environmental Protection Agency’s (“EPA”) efforts to regulate greenhouse gas emissions. On June 18, 2014, the EPA published for public comment a proposed...more

EPA Appears to Have Green Light to Develop Regulations on Utility Power Plant Greenhouse Gas Emissions

Efforts by the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gas emissions just cleared a significant hurdle through a recent U.S. Supreme Court decision, which appears to give the agency a green light to...more

Scientists Weigh In On Biogenic Carbon Accounting Debate

On June 19, 2014, over 90 scientists sent a letter to EPA urging the Agency to move forward under its Tailoring Rule by "1) moving beyond the flawed assumption that bioenergy is inherently carbon neutral; 2) rejecting the...more

Déjà Vu, All Over Again: Seventh Circuit Again Remands PJM’s Cost Allocation Methodology for New, High-Voltage Transmission...

On June 25, 2014, the U.S. Court of Appeals for the Seventh Circuit, with Judge Richard A. Posner writing for himself and Judge John Daniel Tinder, granted petitions for review of Federal Energy Regulatory Commission (FERC)...more

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