District Court Rules It Lacks Jurisdiction Over Claims for Future Climate Change Injuries

The U.S. District Court of the District of Massachusetts dismissed, in part, an environmental group’s challenge to a Boston Harbor terminal’s stormwater permit, claiming that the permit fails to protect the group’s members from future harm from climate change. The Conservation Law Foundation (CLF) filed a Clean Water Act and Resource Conservation and Recovery Act citizen suit in September 2016. Among other things, they argued the Everett Terminal’s Stormwater Pollution Prevention Plan, Spill Prevention, Control and Countermeasures Plan, and Facility Response Plan failed to account for petroleum product discharges that would occur in the future from sea level rise, storm surges, severe weather events and flooding caused by climate change.

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Sidley Environmental Trends

Topics discussed this week include:

  • Environmental group brings Clean Water Act citizen suit against Shell and Motiva that alleges climate change-related harms.
  • District court stays CERCLA unilateral administrative order.
  • District court overturns Department of the Interior stay of rule governing royalties for oil, natural gas and coal production on federal and Indian lands.
  • Second Circuit upholds New York State’s decision to deny Clean Water Act certification to proposed pipeline.
  • C. Circuit holds that FERC should consider power plant emissions in pipeline environmental impact statement.
  • Hurricane Harvey affects Gulf Coast energy and chemical resources.

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Sidley Environmental Trends

Topics discussed this week include:

  • Federal agencies reopen comment on Obama administration auto fuel efficiency standards.
  • Environmental groups file legal challenges to TSCA rules.
  • Tenth Circuit vacates EPA denial of small-refinery renewable fuels exemption.
  • EPA begins revisions to power plant wastewater rules.
  • DC Circuit rules EPA’s hydrofluorocarbon rule exceeds statutory authority.

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Southeast Market Pipelines Project Certificate Vacated and Remanded to FERC for Further Environmental Review on Greenhouse Gas Emissions

In a 2-1 decision that issued today, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Sierra Club et. al v. Federal Energy Regulatory Commission (Sierra Club) vacated and remanded a Natural Gas Act (NGA) Section 7 certificate of public convenience and necessity granted by the Federal Energy Regulatory Commission (FERC) to the Southeast Market Pipelines Project (Project) in 2016.  The Project comprises three natural gas pipelines currently under construction in Alabama, Georgia, and Florida that, once built, will transport over 1 billion cubic feet of natural gas per day over 500 miles to feed new and existing natural gas-fired electric plants in Florida and to serve the growing natural gas demand of Florida utility customers. 

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Energy Enforcement Update

This week’s enforcement update covers:

  • FERC and Smith file pleadings on Smith motion for judgment on the pleadings in Barclays case;
  • CFTC finds that the Bank of Tokyo-Mitsubishi UFJ, Ltd. engaged in spoofing of Treasury futures and Eurodollar futures – applauds cooperation of the bank;
  • Appeals court upholds spoofing conviction against Michael Coscia;
  • FERC quorum restored with two new Commissioners;
  • Senate unanimously confirms CFTC nominees;
  • CFTC orders trader to pay $650,000 civil penalty for spoofing;
  • Judge grants motions to dismiss New York ZEC lawsuit; and
  • Fifth Circuit denies TOTAL petition for rehearing en banc of declaratory judgment action against FERC.

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Sidley Shale and Hydraulic Fracturing Report

Vol. 6, No. 30

Topics discussed in this week’s Report include:

  • Industry seeks rehearing en banc of decision vacating 90-day stay of methane rule.
  • Senate confirmations will restore FERC quorum.
  • Assistant Attorney General for Environment and Natural Resources Division advances.
  • Landowners challenge FERC power of eminent domain.
  • UK authorizes first commercial shale gas well.

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Sidley Shale and Hydraulic Fracturing Report

Vol. 6, No. 29

Topics discussed in this week’s Report include:

  • BLM issues proposed rule that would rescind Obama-era regulation governing hydraulic fracturing on public lands.
  • West Virginia and Pennsylvania separately delay construction of two pipelines.
  • Massachusetts will study proposed Enbridge natural gas compressor station.
  • EIA predicts that U.S. crude oil production will set new record in 2018.

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