The Nickel Report

On December 13, 2022, the US Department of Energy (DOE) published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, BIL-Carbon Utilization Procurement Grants Under Bipartisan Infrastructure Law Section 40302.

The Carbon Utilization Procurement Grant program provides incentives for the use of products developed from the conversion of carbon oxides emitted from human activity. Carbon capture, storage, and reuse opportunities have traditionally been designed to address a narrow scope of issues and be available exclusively to targeted industries and subsectors. The broad eligibility outlined in this NOI suggests a vast applicability to all industry sectors and segments of the supply chain.

On January 12, 2023, the U.S. Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) announced the signature of a Notice of Proposed Rulemaking (NOPR) addressing the regulations governing wind energy development on the Outer Continental Shelf (OCS). As BOEM notes in the NOPR, the first OCS renewable energy regulations were promulgated in 2009 by the Minerals Management Service, the predecessor to BOEM.  Through the NOPR, BOEM intends to modernize its regulations by implementing reforms identified by the agency and recommended by stakeholders since 2010, when BOEM was established. 

Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA).  This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS.  The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR).  In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test).  The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters.  The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.

On January 12, 2023, the US Environmental Protection Agency (“EPA”) published its proposed National Enforcement and Compliance Initiatives ("NECIs”), soliciting public comment on the Agency’s potential Initiatives for fiscal years 2024 through 2027. These NECIs will guide EPA’s Office of Enforcement and Compliance Assurance (“OECA”) in its enforcement efforts over the next four years by focusing resources on “serious and widespread environmental problems where federal enforcement can make a difference.” Unsurprisingly, the identified NECIs build off EPA’s FY2022 Enforcement Results (on which we recently reported) and reflect OECA’s overarching goal: “to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

Hydrogen plays a critical role in the United States’ energy mix, providing energy security, economic value, and environmental benefits. DOE’s Office of Energy Efficiency and Renewable Energy (EERE) issued the NOI to achieve such goals by providing financial assistance awards in the form of cooperative agreements. These funds were appropriated by Congress in the Infrastructure Investment and Jobs Act (more commonly known as the Bipartisan Infrastructure Law (BIL)).

The US Environmental Protection Agency (“EPA”) announced its enforcement and compliance results for Fiscal Year 2022 (“FY2022”) in late December. In the Annual Results report prepared by EPA’s Office of Enforcement and Compliance Assurance (“OECA”), OECA highlights EPA’s efforts to target the most serious violations of the country’s core environmental statutes and civil rights laws—effectuating the mission and principles set forth in its FY2022 to 2026 EPA Strategic Plan. According to OECA, EPA’s enforcement and compliance program used “a range of tools and best practices” to specifically target water, air, land and chemical violations that impacted communities the most. In so doing, EPA reportedly reduced, treated or eliminated approximately 95 million pounds of pollutants and compelled violators to pay over $300 million in fines, restitution or penalties. The enforcement and compliance trends highlighted below continue an overall decline seen in the last decade, yet provide evidence that EPA is succeeding in its enforcement and compliance efforts in areas that are the biggest priority for the Biden administration.

Below are some key points from two CCUS-related events in Texas last week: the annual CO₂-EOR Conference in Midland, which has been going on for almost 30 years; and a symposium our firm hosted with the University of Houston on CCUS risk management. We’ll start with the latter.

The lesser prairie-chicken (LPC) is a grouse that occupies a five-state range, including the western areas of Kansas and Oklahoma, the Texas Panhandle, eastern New Mexico, and southeastern Colorado.  As we explained in a previous article, in response to litigation and following a nearly thirty-year history of regulatory listing and delisting, the US Fish and Wildlife Service (FWS or Service) proposed to re-list two distinct population segments (DPS) of the LPC under the Endangered Species Act (ESA) in June, 2021.[1]  86 Fed. Reg. 29,432 (June 1, 2021).  The Service has now issued a final rule listing the Southern DPS of the LPC (covering southwest Texas Panhandle and eastern New Mexico) as endangered and the Northern DPS of the LPC (covering southwestern to southcentral Kansas, western Oklahoma, northeast Texas Panhandle, and southeast Colorado) as threatened under the ESA.  87 Fed. Reg. 72,674 (Nov. 25, 2022).  The rule becomes effective on January 24, 2023. 

This article follows up on two prior articles published by Hunton Andrews Kurth LLP attorneys focusing on the Department of the Interior’s (“DOI”) funding of state orphaned well programs[1] and the Biden Administration’s promise of a greater emphasis on consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking.[2]