Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Who Pays to Fix the Aliso Canyon Methane Leak?

Posted in California, Environmental Quality, Health and Safety

As nearly everyone has heard by now, on Octobe​​r 23, 2015, a leak at a Southern California Gas Company (“SoCalGas”) natural gas storage well was discovered by crews at the Aliso Canyon storage field in Los Angeles. In a Jan 18, 2016 press release, SoCalGas announced that it expected to finally be able to stop the leak by late February and possibly sooner.

While the question of the environmental impact of the leak has been widely discussed and debated in the media, significantly less attention has been focused on the question of who pays to fix it. Read More

Take Two! Frogs, Water, and the Endangered Species Act in Oregon

Posted in Land Use, Litigation, Northwest

In late December we reported on a lawsuit filed by the Center for Biological Diversity (“Center”) that alleges the U.S. Bureau of Reclamation (“BOR”) is violating the Endangered Species Act (“ESA”) through its operation and maintenance of the Crane Prairie and Wickiup dams and reservoirs in the Upper Deschutes River Basin. On January 11, 2016, WaterWatch of Oregon (“WaterWatch”) filed a similar lawsuit in the same federal district court in Eugene. Read More

Frogs, Water, and the Endangered Species Act in Oregon

Posted in Land Use, Litigation, Northwest

Oregon spotted frogs and their habitats are being harmed because of the way the U.S. Bureau of Reclamation (“BOR”) operates and maintains some reservoirs in the Upper Deschutes River Basin, so asserts the Center for Biological Diversity (“the Center”) in a lawsuit filed against the BOR on December 18, 2015 in federal district court in Eugene.

Read More

DOJ Signals More Aggressive Stance On Environmental Crimes

Posted in Federal, Health and Safety

The Department of Justice announced on December 17, 2015, that it would intensify enforcement of environmental and safety laws by adding in environmental criminal counts to worker safety prosecutions.  The worker safety issues are often misdemeanors, so by coupling them with environmental crimes the Department expects it can impose greater penalties and increase deterrence.  Read More

Dumpster Dives, Investigations and Penalties

Posted in California, Sustainability

What you put in the trash can cost you a fortune. Regulators are increasingly interested in companies’ disposal practices and are initiating investigations and enforcement actions. The “dumpster dives” form the basis of a steady stream of income for the State of California and various District Attorneys.

Today, the California Attorney General and Alameda District Attorney (collectively, the “State”) announced a settlement with a Comcast Corporation resolving a three-year investigation into the company’s waste handling practices. The settlement includes $23 million in penalties and costs and a commitment to devote resources to compliance efforts over the next five years.     Read More

Passive Owner Fined Nearly $160MM for DWH Spill

Posted in Litigation, Water Law

One unanswered question from the Deepwater Horizon litigation was the Clean Water Act civil penalty liability that would be imposed – or not – on Anadarko Petroleum, a passive owner of a 25% interest in the BP lease.  On November 30, 2015, the district court answered that question, imposing a penalty of $159.5MM.  The court observed that while “out of context,” this penalty might appear “high”, it amounted to $50 a barrel and only 4.5% of the maximum the court could have imposed, and was far outside the range of $1B to $5B requested by the United States. Read More

Clean Power Plan Formally Published – Full Steam Ahead for Challengers!

Posted in Climate Change, Federal, Rulemakings

The U.S. EPA formally published the final version of the Obama Administration’s Clean Power Plan on Friday, October 23, an action which starts a 60 day period within which to challenge the rule.  On the same day, 26 challenges were filed, asking the Court of Appeals for the District of Columbia Circuit to invalidate the rule.  Several of those petitions asked the Court to stay the rule while the challenges are heard.  The plaintiffs include more than two dozen states and a number of energy-generating entities that rely on fossil fuels. Read More

Curiouser and Curiouser: Sixth Circuit Not Sure of Jurisdiction but Stays WOTUS Rule Anyway

Posted in EPA, Rulemakings, Water Law

Does this make sense to you?  Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act.  Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule.  And then, the court acknowledges it may not have jurisdiction but issues the stay anyway!  That is exactly what Sixth Circuit did in the case published today.

This case is among many seeking to block the rule.  The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.”  But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation.

The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly.  The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.

The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination.  The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making.  Pants first, then shoes.

Did the majority consider the situation an emergency that required immediate action?  No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule.  The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation.

Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal?  Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing.  Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record.  Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.

BP has settled its Clean Water Act penalty claims, but important questions remain to be decided

Posted in Environmental Quality, Health and Safety, Litigation

The United States and BP lodged their proposed settlement of the remaining claims by the US in connection with the Deepwater Horizon explosion and spill with the US District Court today. Comments to the Justice Department are due by Friday, December 4, 2015.  The details of the proposed settlement, which includes the largest Clean Water Act penalty in US history, had been earlier announced in the press, and are summarized on the Proposed Consent Decree Fact SheetRead More

Senate Bill 350 Calls for Higher Renewables Portfolio Standard, Higher Energy Efficiency Targets, an Expanded System Operator, but No Petroleum Reduction Targets

Posted in California, Climate Change, Renewables

As most of you know by now, Senate Bill (“SB”) 350, the much-chronicled and debated Clean Energy and Pollution Reduction Act of 2015, passed out of the California Legislature and is currently awaiting signature by Governor Brown.  The bill currently includes the following significant changes to California’s energy and climate goals: Read More