U.S. Appeals, Seeks Stay of Injunction of Social Cost of Greenhouse Gas Estimates

On Saturday, February 19, 2022, the United States appealed an injunction prohibiting federal agencies from adopting and relying on the interim Social Cost of Greenhouse Gas estimates established by the Interagency Working Group. (more…)

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Climate Change Takes Center Stage in FERC’s Updated Policy on the Certification of New Natural Gas Infrastructure

On February 18, 2022, the Federal Energy Regulatory Commission (“FERC”) announced for the first time that it will consider a proposed natural gas infrastructure project’s impact on climate change as part of its public interest determination under sections 3 and 7 of the Natural Gas Act (“NGA”).  A proposed project’s environmental effects, including reasonably foreseeable greenhouse gas emissions that may be attributable to the project and the project’s impact on environmental justice communities, now will become part of FERC’s balancing test for whether a project is: (1) required by the public convenience and necessity (“PCN”) under NGA section 7; (2) or in the public interest under NGA section 3.  FERC’s prior PCN policy prioritized economic factors to define public need. Environmental effects, while considered under the NGA, were addressed primarily under the National Environmental Policy Act (“NEPA”). (more…)

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Texas Supreme Court Holds Texas Commission on Environmental Quality Definition of “Operator” Controls Over Judicial Interpretation

On February 11, 2022, the Supreme Court of Texas issued its opinion in Texas Environmental Quality et al. v. Maverick County, et al., a case that addressed the meaning of the term “operator” in the context of the application for an issuance of Texas Pollution Discharge Elimination System (TPDES) permits. Maverick County provides clarity about who must apply for a TPDES permit, particularly in the context of facilities owned by one entity but operated day-to-day by another. The decision also provides a helpful analysis of what definitions govern when a judicial interpretation differs from the language provided by an agency pursuant to its statutory authority. (more…)

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EPA Appoints Environmental Justice Advisor to Support Administrator’s Environmental Justice Goals

On February 8, 2022, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan announced the appointment of Robin Morris Collin as Senior Advisor of Environmental Justice to the Administrator. This appointment is the most recent agency action in the EPA-wide effort to prioritize environmental justice. According to EPA, “Collin will advise Administrator Regan as the Agency works to advance environmental justice and civil rights in communities that continue to suffer from disproportionately high pollution levels, including low-income communities and communities of color.” (more…)

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Federal Judge Blocks Biden’s Social Cost of Greenhouse Gas Estimates

On February 11, 2022, Judge James Cain of the U.S. District Court for the Western District of Louisiana granted a motion for a preliminary injunction filed by Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, South Dakota, Texas, West Virginia, and Wyoming (Plaintiff States) to prohibit federal agencies from adopting and relying on the interim Social Cost of Greenhouse Gas (SC-GHG) estimates established by the Interagency Working Group (IWG). Executive Order 13990 mandated that IWG publish estimates of the monetized damages associated with incremental increases in greenhouse gas emissions. (more…)

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Flint, Michigan, Water Woes Continue for Independent Engineering Company

On Monday, February 7, the U.S. District Court for the Eastern District of Michigan denied in part a professional engineering company’s motion for summary judgment in Walters et al. v. Flint et al., part of the ongoing Flint water litigation. Plaintiffs in the litigation sought to hold the engineering company, which has served as a water engineer for the City of Flint since at least 2011 and had been involved in discussing and planning the city’s possible switch of water source, liable for professional negligence based on the company’s failure to warn the city of its plan’s shortcomings or otherwise recommend corrective measures.   (more…)

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Ninth Circuit Lifts Injunction in Response to Company’s Pleas to Meet Construction Deadlines

The U.S. Court of Appeals for the Ninth Circuit recently lifted a preliminary injunction in Fallon Paiute-Shoshone Tribe, et al. v. U.S. Dep’t of Interior. The plaintiffs had challenged construction of the Dixie Meadows Geothermal Utilization Project, which is expected to help Nevada achieve its renewable portfolio requirement and would include two geothermal plants, at least 18 geothermal wells, and approximately 50 miles of transmission lines over a 2,000-acre plot of public land. (more…)

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Texas Challenges EPA’s Ozone Nonattainment Designation for El Paso County

On Friday, the state of Texas and Texas Commission on Environmental Quality filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging the Environmental Protection Agency (EPA) November 2021 designation of El Paso County as a nonattainment area for ozone. (more…)

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Fourth Circuit Vacates Mountain Valley Pipeline Approval

On Tuesday, the U.S. Court of Appeals for the Fourth Circuit vacated, for the second time, the record of decision issued by the U.S. Forest Service and Bureau of Land Management allowing the Mountain Valley pipeline to cross three and a half miles of the Jefferson National Forest in Virginia and West Virginia. (more…)

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