Sidley Environmental Trends

Topics discussed this week include:

  • EPA and Corps propose to delay Waters of the United States effective date.
  • BLM opposes petition for panel rehearing in hydraulic fracturing appeal.
  • D.C. Circuit weighs coal ash rule challenges and EPA effort to remand.
  • Third Circuit hears argument on Delaware River Basin Commissions hydraulic fracturing moratorium.
  • Environmental groups petition FERC for rehearing on Atlantic Coast Pipeline.
  • EC reauthorizes glyphosate as study finds no cancer link.
  • DOJ, EPA enforcement officials speak on environmental enforcement.
  • EPA Assistant Administrator for Air and Radiation confirmed.

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Ninth Circuit Permits Interest-Group Enforcement of RCRA After EPA Exercises Non-Enforcement Discretion on Stormwater

*This article originally appeared on the WLF Legal Pulse at wlflegalpulse.com on November 22, 2017.

Can an environmental organization file suit under the Resource Conservation and Recovery Act’s (“RCRA”) citizen-suit provision claiming harm from stormwater runoff which could be, but was not, subject to limits under a Clean Water Act (“CWA”) permit? In a November 2, 2017 decision, Ecological Rights Foundation v. Pacific Gas and Electric Company, the U.S. Court of Appeals for the Ninth Circuit held that it could. The ruling, which also rejected the defendant’s arguments opposing Article III standing, is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations.

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Energy Enforcement Update

Our latest enforcement update covers:

  • FERC releases 2017 Report on Enforcement showing continued focus on fraud and market manipulation;
  • CFTC settles with Statoil ASA for attempted manipulation of Argus Far East Index propane benchmark – “damning” messages again cause trouble;
  • Judge issues case management order and sets trial date in CFTC case against Kraft;
  • FERC approves settlement in Barclays case;
  • CFTC orders Cargill, Inc. to pay a $10 million civil penalty for providing inaccurate mid-market marks on swaps;
  • Senate confirms McIntyre and Glick to FERC, but still not sworn in at FERC; and
  • CFTC orders Morgan Stanley and Co. Incorporated to pay $350,000 penalty for Part 17 Large Trader reporting violations.

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Sidley Environmental Trends

Topics discussed this week include:

  • Two lawsuits allege that state and federal officials violated youth plaintiffs’ constitutional rights by failing to sufficiently fight climate change.
  • EPA issues directive on advisory committees.
  • EPA issues final attainment area designations for ozone NAAQS for most areas of the United States.
  • EPA issues NODAs regarding 2016 NSPS for oil and gas industry.
  • Senate confirms nominee for EPA Assistant Administrator for the Office of Air and Radiation.
  • Ninth Circuit limits reach of RCRA’s antiduplication provision.

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Sidley to Add Prominent Energy Capital Markets, M&A Team in Houston, Washington, D.C.

Houston – Sidley Austin LLP announced that it will add a highly sought-after team of five partners to its Capital Markets and M&A practices, four of whom – David Buck, Jon Daly, Angela Richards and George Vlahakos – will be based in its Houston office, with the remaining partner – Bill Cooper – splitting his time between Houston and Washington, D.C. Mr. Buck, Mr. Daly, Mr. Vlahakos and Mr. Cooper will join Sidley November 1, while Ms. Richards will follow in early December. Their arrival will solidify Sidley’s position as a destination firm for energy transactions.

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Sidley Environmental Trends

Topics discussed this week include:

  • U.S. House of Representatives passes bill to end EPA’s “sue and settle” practice.
  • EPA announces that public wastewater treatment plants air standards will remain unchanged.
  • Interior Department issues report evaluating federal energy regulations.
  • DOI announces sale of largest federal oil and gas lease in U.S. history.
  • Sixth Circuit reinstates residents’ nuisance claim against Detroit refinery.

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Energy Enforcement Update

This week’s enforcement update covers:

  • Barclays and FERC Enforcement reach agreement in principle to settle manipulation lawsuit for a total of $105 million;
  • HSBC executive convicted of foreign currency exchange fraud;
  • FERC Chairman Chatterjee calls for FERC to reexamine proper scope of de novo review;
  • Senator Blumenthal calls on FERC to investigate price manipulation allegations;
  • CFTC finds that Arab Global Commodities DMCC engaged in spoofing of copper futures contracts; and
  • FERC files response to Silkman and CES objection to magistrate’s discovery rulings in district court.

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