Permits and authorizations

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On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released the final version of a rule revamping certain nationwide permits (NWPs) under the Clean Water Act (CWA). The CWA authorizes the Corps to issue general permits authorizing categories of activities that have minimal individual and cumulative adverse environmental effects. These permits remain in effect for no more than five years, at which point the Corps must renew the permits.

This rule reissues and modifies 12 nationwide permits (NWPs) and issues four new NWPs. Of these 16 NWPs, the most impactful changes are to NWP 12.Continue Reading U.S. Army Corps of Engineers revamps Clean Water Act Nationwide Permit 12

On April 15, 2020, a federal district court in Montana issued an order vacating the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 under the federal Clean Water Act (CWA) due to the Corps’ failure to meet its obligations under the federal Endangered Species Act (ESA). The court remanded NWP 12 to the Corps for compliance with the ESA. In the meantime, however, the court prohibited the Corps from permitting “any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”Continue Reading Montana federal court vacates Nationwide Permit 12 for pipelines and other linear projects

A recent decision by a California court of appeal clarified the breadth of the California Water Resources Control Board’s (Board) subpoena power, which could have implications for other state agencies in California and elsewhere.  Moreover, private entities which are the subject of an administrative investigation may have a difficult time withholding financial records even if those records are not related to the alleged violations, and even if the subpoenaed entity is not directly responsible for any of the alleged violations.
Continue Reading Administrative agencies have broad subpoena power

The Transportation and Climate Initiative (TCI) is a collaboration of 13 Northeast and Mid-Atlantic jurisdictions, including Pennsylvania, New York, New Jersey, and Washington, D.C. The TCI’s goal is to increase the use of clean transportation and energy, and reduce carbon emissions, in the transportation sector. TCI jurisdictions are in the process of developing a plan to lower carbon emissions from transportation through a cap-and-invest program. Under the TCI plan, states would 1) put a cap on vehicle carbon emissions, which would decrease annually, 2) require large fuel suppliers to purchase allowances for the pollution resulting from their sales, and 3) use the proceeds from the allowances to fund programs that increase clean energy, for example, encouraging the use of bikes and electric vehicles.
Continue Reading Northeast’s plan to cap vehicle carbon emissions: reducing emissions or reducing jobs?

On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a pre-publication draft of the final rule to repeal the 2015 Clean Water Rule definition of “Waters of the United States” (WOTUS Rule), which amended existing Clean Water Act (CWA) regulations. According to the EPA, the agencies’ goal is to “implement the pre-2015 Rule regulations nationwide as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”

The WOTUS Rule built on the existing regulatory scheme and defined the geographic scope of the CWA by placing waters into three categories: (1) waters that are categorically “jurisdictional by rule” in all instances; (2) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (3) waters that are categorically excluded from jurisdiction.Continue Reading EPA repeals 2015 WOTUS rule amid broader environmental regulatory rollbacks

On 13 August 2019, the EA published its response to a recent consultation on proposals to revise the standard rules for an environmental permit for a tranche B specified generator that is also a new MCP.

The original consultation and the EA’s response and conclusions can be found at: gov.ukContinue Reading UK Environment Agency (EA) announces changes to standard rules for environmental permits for tranche B specified generators that are also new medium combustion plants (MCPs)

Clean Air Council v. Department of Environmental Protection and Sunoco Partners Marketing & Terminals, L.P., EHB Dkt. No. 2016073L (Adjudication Jan. 9, 2019)

On January 9, 2019, the Pennsylvania Environmental Hearing Board issued its adjudication in an appeal by Clean Air Council of a plan approval issued to Sunoco Partners Marketing & Terminals, L.P. The Board ultimately remanded the plan approval to the Commonwealth of Pennsylvania Department of Environmental Protection (DEP) for further consideration. The Board’s discussion of why it remanded the plan approval provides in-depth insight into what it considers to be indicia of project aggregation for purposes of New Source Review (NSR) and Prevention of Significant Deterioration (PSD) under the Clean Air Act.Continue Reading What does the Pennsylvania EHB aggregation decision and opinion mean for your business?