U.S. Election Results 2018: Preliminary Considerations for the Energy Industry

Democrats’ regaining the majority in the U.S. House of Representatives assures an interesting upcoming two years of policy debates for the energy industry. Expect House Democrats to push initiatives on clean energy and address the effects of climate change through hearings or possible legislation, along with further scrutiny on the White House, Cabinet secretaries and federal agencies.

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Sidley Environmental Trends

Topics discussed this week include:

  • Fishermen’s trade association sues energy companies for alleged climate-change-related harms
  • EPA releases draft toxicology assessments for two PFAS compounds
  • EPA announces Cleaner Trucks Initiative
  • EPA finalizes amendments to the petroleum refinery sector MACT 1, MACT 2 and NSPS regulations
  • EPA proposes rule intended to clarify reporting requirements under CERCLA and EPCRA associated with air emissions from animal waste at farms

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Energy Enforcement Update

This week’s enforcement update covers:

  • FERC issues 2018 Report on Enforcement showing continued focus on fraud and market manipulation;
  • CFTC Enforcement Director discusses Enforcement trends and CFTC releases Annual Report on enforcement;
  • CFTC orders Commerzbank AG to pay $12 million for swap dealing violations and misleading statements to the CFTC;
  • Former commodities trading executive arrested for scheme to defraud employer by hiding trading losses; and
  • CFTC and Kraft file oppositions to motions for summary judgment.

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Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction

This article originally appeared in The WLF Legal Pulse

The definition of waters of the United States is central to the CWA.  At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,”  and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  See 33 U.S.C. §§ 1362(7), (12) and (14).

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Sidley Environmental Trends

Topics discussed this week include:

  • Environmental Protection Agency set to reinstitute 2009 definition of “project aggregation” for New Source Review permitting program
  • Federal appeals court stays climate change litigation trial
  • Environmental Protection Agency renews dicamba registration for two years
  • Environmental Protection Agency issues new guidance outlining deference to states and tribes
  • Mott’s sued over trace amounts of synthetic pesticide found in “natural” applesauce

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Transportation Agencies Update Environmental Review Process for Infrastructure Projects

Regulations issued Monday could create a faster, less duplicative environmental review process for transportation infrastructure projects. Under the rule, the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA) will share a single set of Section 4(f) and National Environmental Policy Act (NEPA) regulations, with minor differences. 83 Fed. Reg. 54,480 (Oct. 29, 2018). The agencies explain that the changes “will provide a more consistent and predictable process for potential project sponsors, especially those that engage in environmental reviews for more than one mode of surface transportation.” Id. at 54,482. By joining the 23 C.F.R. part 771 regulations, FRA also fulfills its obligation under the Fixing America’s Surface Transportation (FAST) Act. The regulations go into effect November 28.

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The Environmental Agenda: A Post-Election Review

WEBINAR
Thursday, November 15, 2018 | 11:00 a.m. – 12:00 p.m. ET

With the midterm elections behind us, our panelists will reflect on the Administration’s deregulatory agenda to date and offer their outlook for the next two years of the Trump Administration on environmental legislation, regulation and enforcement, including:

  • The changes in the Congress and how those may impact key committees, increase oversight of EPA and other agencies, and result in renewed focus on climate change.
  • The repeal and modification of signature Obama regulations, such as the Clean Power Plan, New Source Performance Standards regulating emissions from oil and gas sources, and WOTUS.
  • The Administration’s policy agenda, including NSR reform, changes to rules governing NEPA and the ESA, and approach to enforcement.

SPEAKERS

  • Sam Boxerman, Partner, Sidley Austin (Moderator)
  • Rick Boucher, Partner, Sidley Austin and former U.S. Congressman
  • Dan Byers, Vice President, Policy, Global Energy Institute
  • Rachel Jones, Senior Director of Policy, Energy and Resources, National Association of Manufacturers

PLEASE CLICK HERE TO REGISTER

For questions or additional information regarding this event, please contact dcevents@sidley.com.

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