President Joe Biden unveiled the first of his two-part infrastructure proposal on Wednesday, March 31. Referred to as the American Jobs Plan, the package would provide $2.3 trillion in spending to support traditional infrastructure upgrades and activities within a new, more expansive definition of infrastructure. The plan provides $621 billion for transportation infrastructure and resiliency activities, $115 billion of which would fund repairs to roads and bridges. This also includes $174 billion in electric vehicle (EV) investments to create a national network of 500,000 EV chargers by 2030, electrify at least 20% of school buses, and electrify the federal fleet, including the U.S. Postal Service. In addition, the proposal provides $111 billion in water infrastructure funding, which includes $45 billion to replace 100% of the nation’s lead service lines and $10 billion to monitor and remediate per- and polyfluoroalkyl substances (PFAS) in drinking water.
On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.
On March 11, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed a decision approving of Grant County, Washington’s, special power rate for cryptocurrency miners. In Cytline, LLC, et al. v. Public Utility District No. 2 of Grant County Washington, a group of cryptocurrency companies sued after a Grant County utility district created a special energy rate applicable only to cryptocurrency miners. The companies had moved to Grant County because the county had some of the lowest rates for electricity in the country. (more…)
Historically, the emissions standards for mobile sources promulgated by the U.S. Environmental Protection Agency (EPA) have been viewed as more ambitious than European Union (EU) standards. The United States’ stringent enforcement of mobile source emission standards may result in significant financial penalties; extensive injunctive relief, such as recalls and high-cost mitigation projects; corporate compliance requirements; and in some cases, criminal indictment.
On the other side of the Atlantic, in the EU, mobile emissions compliance regulations are becoming more robust. In particular, the EU appears to be adopting a stricter approach on emissions through a growing body of case law on the interpretation and application of existing emissions compliance regulations. In a judgment on 17 December 2020, in CLCV and Others, the Court of Justice of the European Union (Court) adopted a potentially broad interpretation on the definition of defeat devices and appeared to limit the scope of exceptions for their use in vehicles sold, registered, or put into service in the EU.1 This judgment is likely to set the benchmark for other proceedings on the admissibility of defeat devices in the EU.
Notably, there are at least six cases pending before the Court on mobile source emissions and the concept of defeat devices for light-duty passenger and commercial vehicles under Regulation (EC) No 715/2007 (Regulation).2
On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.
On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.
On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.
On November 2, 2020, several environmental interest groups including the Sierra Club and Earthjustice filed suits in the U.S. Courts of Appeals for the Fourth and D.C. circuits challenging the Environmental Protection Agency’s (EPA) recent Steam Electric Reconsideration Rule (SERR), which rolled back certain Obama-era effluent discharge limitations on coal-fired power plants. (more…)