The Nickel Report

On October 17, the federal District Court of the Northern District of West Virginia ruled in a lawsuit brought by Murray Energy that EPA had violated Clean Air Act § 321(a)’s requirement that the agency “conduct continuing evaluations of potential loss or shifts of employment” that may result from EPA air regulations. Judge John Preston Bailey, a nominee of President George W. Bush, found that “Congress unmistakably intended to track and monitor the effects of the Clean Air Act and its implementing regulations on employment in order to improve the legislative and regulatory processes,” and that job loss evaluations “may have the effect of convincing the EPA, Congress, and/or the American public to relax or alter EPA’s prior decisions.” At that time, Judge Bailey gave EPA just two weeks to come up with a plan to evaluate those impacts.

On November 2, 2016, the US Fish and Wildlife Service (the Service) announced its intention to issue a permit authorizing the take of up to three golden eagles during the five-year permit term for the 48-turbine Alta East Wind facility in Kern County, California. The announcement was contained in a notice published in the Federal Register, which also announced the availability of the Service’s Finding of No Significant Impact (FONSI) for the issuance of the permit. The permit is to be issued 30 days following the publication of the Federal Register notice.

Politico reports today that the Sierra Club is set to launch a $5 million campaign to fight construction of the 221 natural gas-fired power plants planned to be constructed across the country. Sierra Club argues that the world cannot afford more carbon dioxide emissions from combustion of fossil fuels.

This summer has been an eventful time for EPA’s regional haze program. In July, the Fifth Circuit issued an important decision to stay EPA’s controversial Texas and Oklahoma regional haze rule and to retain jurisdiction over the litigation on that rule, denying an EPA request that the litigation be transferred to the DC Circuit. While that litigation played out in the spring of this year, EPA proposed major revisions to the regional haze rules­ that will shape the next round of the program’s implementation.

There has been much controversy in recent weeks surrounding the Dakota Access Pipeline (DAPL), a 1,172-mile line proposed to carry crude oil from North Dakota to Illinois. Although only 3 percent of the DAPL requires federal approval, much of the pipeline has already been constructed In particular, the DAPL has raised issues regarding the scope and adequacy of the US Army Corps of Engineers’ (Corps’) consultation with federal tribes in authorizing segments of oil and gas pipelines crossing federal waters, and has caused the administration to consider reforms for how tribes weigh in on infrastructure reviews.