The Nickel Report

On January 11, 2018, the Federal Energy Regulatory Commission (FERC) denied Constitution Pipeline Company, LLC’s Petition for a Declaratory Order that New York had waived its ability to act under section 401 of the Clean Water Act (CWA) by failing to grant or deny Constitution’s application for a section 401 certification within a “reasonable period of time.” See In re Constitution Pipeline Co., LLC, 162 FERC ¶ 61,014 (Jan. 11, 2018). The decision is another in a sequence of decisions from FERC and the federal courts of appeals concerning the time period for States to act under ...

The Federal Energy Regulatory Commission (FERC or the Commission) announced last month that it will review its policies governing the certification process for natural gas pipelines. The announcement was made by FERC Chairman Kevin J. McIntyre on December 21, 2017, in fulfillment of a pledge that he made during his Senate confirmation hearing in September 2017. The format and scope of the review are still being determined.

Read the full report on PipelineLaw.com.

In an article published in Law360, Hunton & Williams LLP partners Walter Andrews, Malcolm Weiss, and I discuss two recent decisions in Tree Top Inc. v. Starr Indem. & Liab. Co., No. 1:15-CV-03155-SMJ, 2017 WL 5664718 (E.D. Wash. Nov. 21, 2017).  There, the Eastern District of Washington rejected an insurer's attempt to escape insurance coverage for a Proposition 65 lawsuit filed against juice-maker Tree Top Inc.

As recently noted here, shortly after the Trump administration took office last year, the Solicitor’s Office for the U.S. Department of the Interior (DOI) withdrew a legal opinion it issued in the waning days of the Obama administration which concluded that the Migratory Bird Treaty Act (MBTA) prohibits incidental take of migratory birds, pending further review of the question.  The results of that further review were revealed on December 22, 2017, when the Solicitor’s Office issued a new opinion reaching the opposite conclusion.

In 2016, the US Fish and Wildlife Service (FWS or the Service) issued two policies on how to mitigate the impact of projects affecting fish and wildlife and natural resources: one overarching policy and one policy specific to Endangered Species Act implementation. Raising eyebrows, these mitigation policies were not limited to offsetting project impacts, but instead set a goal of improving the condition of affected resources.

On November 16, 2017, the D.C. Circuit heard oral argument in the cases challenging EPA’s 2012 rule allowing states to rely on compliance with the Cross-State Air Pollution Rule (CSAPR) to satisfy electric generating units’ “best available retrofit technology” (BART) requirements for emissions of nitrogen oxides and sulfur dioxide under the Clean Air Act (CAA). The cases are UARG v. EPA, No. 12-1342­ and consolidated cases (D.C. Cir.).

Ho Ho Ho! Happy Hanukkah! Happy New Year!
And so it goes this time of year,
with family and friends gathering for the holidays
to share a hot toddy and some good cheer!

As October and November gently glide by,
Heading into December for cookies and pie,
But lo, the environmental lawyer sits
wearily writing at the computer, throwing fits.

What will the court or the EPA say
Will be due around Christmas, Hanukkah, Kwanzaa or New Year’s Day?

Ah… there’s a D.C. Circuit brief due December 22^nd
And comments the 28th that beckon!
So parties that are fun are not to be had
Rather, parties that are litigants or co-commenters, egad!

Uncertainty has reigned for a number of years about the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). In the latest effort to address this problem, the House Committee on Natural Resources has attached an amendment to a pending energy bill that would clarify that the MBTA does not prohibit incidental take of protected birds.

The MBTA, a criminal statute enacted in 1918, is one of the oldest wildlife protection laws on the books and covers over 1,000 bird species, including approximately 90 percent of all birds occurring in North America and many common species. The MBTA makes it illegal for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” 16 U.S.C. § 703.

Last October, the European Commission published its Work Programme for 2018. In the environmental area, a prominent topic is the EU initiative with respect to a ‘circular economy.’ This concept involves a transition to a “stronger and more circular economy where resources are used in a more sustainable way.”

The idea is to  "close the loop" of product lifecycles through greater recycling and re-use, so as to realize benefits for both the environment and the economy. Simultaneously, the EU’s circular economy strategy should “extract the maximum value and use from all raw materials, products and waste,” “foster energy savings,” and reduce “Green House Gas emissions.” Accordingly, the Commission’s proposals cover the full lifecycle of products: from production and consumption to waste management and the market for secondary raw materials.

On Thursday, the Senate confirmed Susan Parker Bodine as the Assistant Administrator of the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“OECA”).  OECA, the chief enforcement arm of EPA, coordinates the agency’s enforcement of numerous federal environmental laws within its authority.

This is the second leadership role at EPA for Bodine, who brings significant experience in environmental law to the position.  She formerly served as Assistant Administrator for the agency’s Office of Solid Waste and Emergency Response—now called the Office of Land and Emergency Management—under President George W. Bush.  Before returning to the EPA, Bodine served as Chief Counsel for the Senate Environment and Public Works Committee, from 2015 until this August.  She also served as Counsel to the House Transportation and Infrastructure Committee, and was engaged in private legal practice.