The Nickel Report

Federal environmental reviews are high on the list of project time, costs and risk drivers. National Environmental Policy Act (NEPA) analysis and Endangered Species Act (ESA) Section 7 consultation are often chief among those drivers. The impact of preparing an Environmental Impact Statement or Biological Opinion (such as scheduling; consultant, mitigation and market opportunity costs; and litigation risks) often turns on the scope of analysis, which in turn depends on determining which effects will be caused by the action. In August 2019, the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) established, for the first time, a regulatory causation standard governing ESA section 7 consultations, and, in January 2020, the Council on Environmental Quality (CEQ) proposed a new rule clarifying the causation standard and scope of review under NEPA.

On December 20, 2019, the Supreme Court of The Netherlands ruled in a climate case brought against the state by Urgenda, a non-governmental organization for “a fast transition towards a sustainable society.” The Court of Appeal and the Court of The Hague had previously ruled on Urgenda's claims. In both instances, the courts granted Urgenda's claim that the Dutch state should reduce emissions of CO2 from its territory by at least 25% by the end of 2020. The Supreme Court rejected the state’s appeal and confirmed the ruling.

On January 22, 2020, the Texas Senate Committees on Natural Resources and Economic Development and Water and Rural Affairs (Senate Committees) held a joint hearing to consider Lt. Governor Dan Patrick’s 2019 interim legislative charge related to one of the most pressing matters facing the state—future water supply issues. This interim charge requires that these legislative committees make recommendations to promote the state’s water supply, including the development of new sources. The recommendations made will be the subject of consideration when the Texas Legislature reconvenes in 2021 and will inform future legislative initiatives. While a broad range of water supply topics was discussed during the hearing, notably, the subject of produced water, including opportunities for reuse within and outside the oil field, continues to be a focal point under review by state policymakers.

Grocery shopping, you stand in the dairy section. The milk in front is dated three days out, but you see the milk toward the back is dated ten days out. You push aside the “three-day” milk and grab a half-gallon of the organic, one-percent “ten-day” milk. You may have just contributed to “food waste.” If food waste were a country, it would be the third largest source of greenhouse gas (GHG) emissions, behind only China and the United States.

While food waste has been an issue for some time (the statistic above has been circulating since at least 2011), the last 18 months have seen the United States government taking a more active role in the subject. In October 2018, the United States Environmental Protection Agency (EPA), United States Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA), (collectively, the Agencies) signed a formal agreement increasing their collaboration and coordination regarding the reduction of food waste as part of a newly announced Winning on Reducing Food Waste initiative (Federal Agreement).

How can sitting still in the Northeast potentially land you in a world of trouble under the Federal Clean Air Act (CAA) and corresponding state laws? Quite easily, if you happen to be in or leave a vehicle with its engine on and the vehicle itself is not in motion for more than a few minutes. That is the definition of “unnecessary vehicle idling” in many jurisdictions.

Across the Northeast and elsewhere, unnecessary vehicle idling is, subject to certain nuances and exceptions, generally prohibited. Recently, violators have come under attack by non-governmental organizations. State penalties vary, but the potential exposure can be severe, especially when the statutory maximum available penalties are calculated pursuant to the Federal CAA and compounded on a per-violation/per-day basis. Accordingly, owners and operators of all forms of trucking and transit companies should not sit still and should take proactive measures to educate or reeducate vehicle schedulers and operators alike on these anti-idling requirements.

Over the last decade, phase one of the Clean Air Act’s regional haze program cost companies (primarily electric generating companies) hundreds of millions of dollars in compliance costs and caused the early closure of a number of facilities. The program is just now entering the initial stages of its second planning period, with major implementation activities expected over the next few years. Unsuspecting companies are finding themselves the targets of the program’s requirements for the first time. In states that have taken early action—Arizona, New Mexico, North Dakota, Oregon and Washington—there has been a shift in attention from older power plants to oil and gas operations and manufacturing facilities in the pulp and paper, cement, and minerals sectors, among others. Even companies that have been through this regulatory process before are facing difficult new questions due to major rule changes enacted in 2017, changes to guidance and key technical documents, and a new focus on statutory provisions addressing “reasonable progress” that were not often used in the past. Hunton Andrews Kurth LLP partner Aaron Flynn has assisted numerous clients in dealing with regional haze issues. In this video, partner Allison Wood interviews Aaron regarding the recent developments in the regional haze program and regarding how companies can best position themselves as states and EPA decide on the next round of emission control requirements.