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In the second quarter of 2022, the Biden administration took steps to implement the President’s whole-of-government environmental justice (EJ) strategy. Specifically, the U.S. Department of Justice (DOJ or the Department), U.S. Environmental Protection Agency (EPA or the Agency), and U.S. Department of Health & Human Services (DHHS) each announced initiatives to address EJ in a variety of agency functions. Additionally, the White House provided an update on funding available to disadvantaged communities.

Biden; DOJ; Environmental Justice; EPA; White House

Supreme Court Upends EPA’s Broad Claims of Climate Regulatory Authority

Jul 08 2022

Samuel Boxerman, Timothy Webster, Caleb J. Bowers, Brittany A. Bolen and Brooklyn Hildebrandt

On Thursday, June 30, the U.S. Supreme Court released its decision in West Virginia v. EPA, holding that the Environmental Protection Agency (EPA) exceeded its statutory authority in adopting the Obama-era Clean Power Plan (CPP). The 6–3 decision may limit EPA’s ability to address greenhouse gas (GHG) emissions comprehensively. A summary of the Court’s reasoning is set out below, followed by four “key takeaways.”

Biden; CAA; Court Decisions; EPA

Agencies Rescind Trump-Era Definition of “Habitat” Under Endangered Species Act

Jun 30 2022

Samuel Boxerman, Peter Whitfield, Aaron L. Flyer and Brooklyn Hildebrandt

On Friday, June 24, the U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a final rule rescinding the agencies’ regulatory definition of “habitat” previously promulgated by the Trump administration on December 16, 2020, for use in determining a “critical habitat” under the Endangered Species Act (Act). Under this prior definition, “habitat” included “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

ESA; FWS; Habitat; NMFS

Electric Reliability Council of Texas’ Independent Market Monitor: Conservative Operating Posture Could Cost Consumers $1.5B

Jun 29 2022

Grace Dickson Gerbas and Emily P. Mallen

On June 22, 2022, the Electric Reliability Council of Texas (ERCOT) Independent Market Monitor director, Carrie Bivens, testified before the Texas House State Affairs Committee on the ERCOT market design, reporting that ERCOT’s “conservative” operating posture since Winter Storm Uri could add $1.5 billion to consumer bills in 2022.

Energy; ERCOT; Texas

D.C. Circuit Finds That California Agency Did Not Waive Clean Water Act Authority for Hydroelectric Power Plan Permitting

Jun 28 2022

Samuel Boxerman and Aaron L. Flyer

On Friday, June 17, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) upheld a decision by the Federal Energy Regulatory Commission (FERC) in Turlock Irrigation District et al. v. Federal Energy Regulatory Commission et al. ruling that the California State Water Resources Control Board (Water Board) did not waive its authority to issue permits in connection with FERC’s licensing of the Don Pedro and La Grange hydroelectric plants (the Projects) in central California under Section 401 of the Clean Water Act.

401; CWA; FERC

FERC’s June Open Meeting Dominated by Electric Transmission Proposed Rulemakings

Jun 24 2022

Keturah A. Brown and Emily P. Mallen

NOPR to Reform Generator Interconnection Procedures and Agreements

On June 16, 2022, the Federal Energy Regulatory Commission (FERC) took another step to ease access to the transmission grid with a Notice of Proposed Rulemaking (NOPR) on Improvements to Generator Interconnection Procedures and Agreements. The NOPR seeks to reform FERC’s current procedures and agreements, and in doing so (1) address the significant interconnection queue backlogs, (2) provide greater certainty, and (3) prevent undue discrimination against new generation technologies.

Electric transmission; Energy; FERC; Power

FERC Jurisdiction Upheld in Puerto Rican Liquified Natural Gas Terminal Proceeding, New Fortress Energy Inc. v. FERC

Jun 22 2022

Keturah A. Brown and Emily P. Mallen

On June 14, 2022, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Federal Energy Regulatory Commission (FERC) finding of jurisdiction over New Fortress Energy LLC’s (New Fortress) liquified natural gas (LNG) import terminal facility in San Juan, Puerto Rico, in New Fortress Energy Inc. v. FERC.

FERC; LNG; Natural Gas; NGA; Pipelines

Quarterly Review: Biden Administration’s Advancement of Environmental Justice

Supreme Court Upends EPA’s Broad Claims of Climate Regulatory Authority

Agencies Rescind Trump-Era Definition of “Habitat” Under Endangered Species Act

Electric Reliability Council of Texas’ Independent Market Monitor: Conservative Operating Posture Could Cost Consumers $1.5B

D.C. Circuit Finds That California Agency Did Not Waive Clean Water Act Authority for Hydroelectric Power Plan Permitting

FERC’s June Open Meeting Dominated by Electric Transmission Proposed Rulemakings

FERC Jurisdiction Upheld in Puerto Rican Liquified Natural Gas Terminal Proceeding, New Fortress Energy Inc. v. FERC

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