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Analyzing the critical energy and environmental issues of the day

Category Archives: Rulemakings

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CPUC Hosts Workshop for New Safety Intervenor

Posted in California, Electric Power, Federal, Rulemakings
Earlier in 2016, the California Public Utilities Commission (CPUC) received approval from the Legislature to establish its own Office of Safety Advocates (OSA) as an effort to expand the participation of safety related intervenors in relevant CPUC proceedings.  This month, the CPUC is hosting a workshop to: (i) allow stakeholders to brainstorm an effective way… Continue Reading

CPUC Cracks Down on Secrecy of Utility Data

Posted in California, Electric Power, Federal, Rulemakings
For California utilities, ensuring their information stays confidential just got harder. On August 25, 2016, the California Public Utilities Commission issued a decision updating the process for submitting potentially confidential documents to the Commission. The Commission intended for this process to ensure consistency across industries and to expedite Commission review of California Public Records Act… Continue Reading

State Water Board Cleans Up Its Water Quality Enforcement Policy

Posted in California, Rulemakings, Water Law
 On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity, allow disadvantaged communities to receive assistance with compliance matters akin to that provided under the current policy to facilities serving small communities,… Continue Reading

CARB Proposed Amendments to Extend the Cap-and-Trade Program Beyond 2020 Overshadow Significant Revisions to the Program Itself

Posted in California, Cap and Trade, Rulemakings
On August 2nd, the California Air Resources Board (CARB) formally released its Proposed Amendments to the California Cap-and-Trade Program.  CARB’s proposed amendments are meant to extend the program through 2030 and ensure continued emissions reductions through 2050.  Notably, the amendments are also intended to broaden the program through linkage with the Ontario program beginning in… Continue Reading

New Amendments To TSCA Invigorate Chemical Regulatory Regime And Empower EPA

Posted in EPA, Health and Safety, Rulemakings
On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the Act) which amends the core provisions of the Toxic Substances Control Act (TSCA), an environmental law whose use and enforcement has dwindled somewhat over the years (Available here). TSCA regulates chemical manufacturing and usage, and… Continue Reading

The Utility as a Distribution System Platform: NYPSC Issues Order in REV Proceeding to Establish A New Paradigm for Utilities, Customers, and Distributed Energy Resources

Posted in Electric Power, Rulemakings
In an important order (“Order”) issued on May 21, 2016 in its Reforming the Energy Vision (“REV”) proceeding, the New York Public Service Commission (“NYPSC”) announced the details of a new paradigm to govern the relationship among utilities, customers, and distributed energy resources (“DERs”).[1] In this new framework, utilities are to play an important role… Continue Reading

Unanimous Support for Conservation in Senate Appropriations Committee

Posted in Environmental Quality, Rulemakings, Water Law
Who knew?  On May 19 those wild eyed environmentalists on the Senate Appropriations Committee unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work.  The bill now goes to the full Senate for a vote, and if it passes, back to the House for reconciliation.… Continue Reading

NYPSC Set to Adopt Clean Energy Standard Aimed at 50% Renewables Goal

Posted in Renewables, Rulemakings
The New York State Energy Plan (“SEP”) calls for 50% of all electricity used in New York State by 2030 to be generated from renewable energy sources (the “50 by 30 Goal”). Additionally, the SEP sets aggressive 2030 targets for emissions (40% reduction in greenhouse gas from 1990 levels) and energy efficiency gains (23% reduction… Continue Reading

Fish and Wildlife Service Supports Renewable Developers and Proposes Revised Eagle Incidental Take Permit Reviving 30-Year Duration

Posted in Federal, Renewables, Rulemakings
On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of permits from 5 years to up to 30 years. This continues the agency’s effort to support wind farms and… Continue Reading

New York Public Service Commission’s ESCO Order Set for Preliminary Injunction Hearing

Posted in Litigation, Rulemakings
On May 20, 2016, a state Supreme Court judge in New York is tentatively set to hear arguments regarding a request for preliminary injunctive relief with regard to the “Order Resetting Retail Energy Markets And Establishing Further Process,” issued on February 23, 2016 (the “ESCO Order”) by the New York Public Service Commission (“NYPSC”).   While… Continue Reading

Oregon PUC outlines ambitious schedule for implementation of Clean Electricity programs

Posted in Electric Power, Northwest, Renewables, Rulemakings
At an April 21 workshop, the Oregon Public Utility Commission presented its timeline for implementing a variety of programs in the wake of the state’s recently passed and far-ranging energy bill, SB 1547 (the “Oregon Clean Electricity and Coal Transition Plan”).  Most widely known for its provisions increasing renewable portfolio standards and phasing out coal-fired… Continue Reading

Sturgeon v. National Park Service: Supreme Court Sidesteps Federal / State Lands Conflict

Posted in Land Use, Litigation, Natural Resources, Rulemakings
A case originating in Alaska may have answered the question for those wondering how the United States Supreme Court will approach weighty questions of law and policy with a vacancy on the Court; it probably won’t. In Sturgeon v. National Park Service, 577 U.S.  (2016), the Court had the opportunity to address a monumental conflict… Continue Reading

Distributed Energy Resources – California Caught In Its Own Regulatory Web

Posted in California, Rulemakings
The California Public Utilities Commission (CPUC) has spent a great deal of time and effort to reach the very broad, generic, and long-term goal to: deploy distributed energy resources that provide optimal customer and grid benefits, while enabling California to reach its climate objectives. In fact, it took the CPUC nearly a full year to… Continue Reading

FERC to Streamline Its Decisions on Rehearing

Posted in Federal, Rulemakings
At its monthly public meeting earlier today, FERC announced the formation of a new Rehearings Group, under the direction of Office of the General Counsel attorney Robert Kennedy.  This group will focus exclusively on drafting rehearing orders and will be taking a much more streamlined approach in doing so, eliminating from such orders the recitation… Continue Reading

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. … Continue Reading

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… Continue Reading

EPA’s Audit Policy eDisclosure: Electronic Self-Reporting for Environmental Violations

Posted in EPA, Rulemakings
Reporting uner EPA’s audit policy, which has provided relief from gravity-based penalties to those who self-report, is about to become much easier.  This fall, EPA expects to launch a centralized web-based “eDisclosure” portal that will make self-disclosure just a mouse click away.  The requirements of the audit policy remain unchanged (e.g., violations must be disclosed… Continue Reading

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

Posted in Federal, Litigation, Natural Resources, Rulemakings
The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty (regular old) ducks”) resulting from uncovered equalization tanks at its Corpus Christi refinery. The court also reversed two Clean Air Act (CAA)… Continue Reading

Windfarm Industry Suffers Setback as Court Rejects 30 Year Eagle Permit Rule

Posted in NEPA, Renewables, Rulemakings
On August 11, 2015, a district court in Silicon Valley remanded a U.S. Fish and Wildlife Service (FWS) rule issued in 2013 that had extended the potential term of incidental take permits under the Bald and Golden Eagle Protection Act (Eagle Protection Act) from 5 years to 30 years.  Bird protection groups challenged FWS issuance of… Continue Reading

FERC, NERC and Business Blackout: New CIP Standards and Fictional Cyber Attacks

Posted in FERC, NERC, Rulemakings
The Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) July 16, 2015, proposing to approve various Critical Infrastructure Protection (CIP) reliability standards proposed by the North American Electric Reliability Corporation (NERC) and further proposed to direct NERC to develop a new CIP reliability standard to protect the bulk electric system (BES)… Continue Reading

Creative Lawyering In RCRA Criminal Action Fails to Find Favor with the Ninth Circuit

Posted in Federal, Rulemakings
The Resource Conservation and Recovery Act, the federal law that regulates management of hazardous waste, is complicated and compliance can be tricky . . . but not impossible.  Our experience is that good faith efforts to comply will avoid serious regulatory problems.  A recent decision by the Ninth Circuit proves that the converse is true… Continue Reading

US Supreme Court Nixes EPA Regulations on Mercury Emissions – Must Consider Costs Early!

Posted in EPA, Rulemakings, Sustainability
In Michigan v. EPA, the U. S. Supreme Court invalidated EPA’s rules limiting emissions of mercury and other pollutants from power plants, ruling that EPA inappropriately ignored the costs of regulation – particularly compliance costs – when it decided it should regulate these emissions from power plants.  The June 29, 5-4 decision chastises EPA for… Continue Reading

Electronic Disclosure of Violations Coming This Fall

Posted in EPA, Rulemakings
Under EPA’s Audit Policy, those who discover,  promptly disclose and correct environmental violations may have penalties reduced or eliminated. 60 Fed Reg 66, 705 et seq. (1995);  65 Fed Reg 19, 617, et seq.  (2000) EPA recently hosted a webinar on its proposed “eDisclosure” portal for reporting Emergency Planning and Community Right-to-Know Act (EPCRA) and… Continue Reading