DAPL Developer Sues Environmental Groups

In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued  Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated …

Trump Administration Working to Repeal and Replace the Clean Water Rule

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the …

Environmental Due Diligence—EPA Adds Subsurface Intrusion to Superfund Hazard Ranking System

Last week, EPA finalized a rule that will allow it to consider subsurface intrusion (most commonly found as “vapor intrusion”) when deciding whether to add a site to the CERCLA National Priorities List (“NPL”).  The addition will enable EPA, using its “Hazard Ranking System,” to directly consider the human exposure to contaminants that enter building …

Court Approves Volkswagen Partial Consent Decree: Tribes Entitled to $50 Million for NOx Emission Mitigation

On October 25, 2016, the federal district court in the Northern District of California approved the United States’ Amended Consent Decree to resolve claims against German automaker Volkswagen AG and related entities (VW) and to settle allegations of cheating emissions tests, deceiving customers, and excess nitrous oxides (NOx) emissions from VW and Audi diesel engine …

Hardrock Mining Financial Assurance Rule Goes to the White House for Review—December 1st Deadline Approaching

EPA’s proposed rule for CERCLA financial assurance for hardrock mining went to the White House last week for OMB review as the December 1st publication deadline set by the D.C. Circuit rapidly approaches. Section 108(b) of CERCLA directs EPA to develop requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration …

California’s Carbon Concern: Leakage from the Imbalance Market

As interest in the Western Energy Imbalance Market  (“EIM”) grows, regulators  at the California Air Resources Board (“CARB”) are facing concerns, once again, about carbon leakage from the state’s mandatory cap and trade program under AB 32. In the context of carbon markets, leakage describes the phenomenon in which a local (in this case, California) …

Governor Hickenlooper Considers Executive Action to Cut Carbon from Colorado’s Power Sector?

With the Clean Power Plan currently stayed in federal court, Colorado Governor John Hickenlooper appears to be considering his own options to act unilaterally on climate change. In a draft executive order leaked this week, the Governor’s office recounts the challenges of clean air and climate change and directs Colorado’s state agencies as follows: Colorado …

EPA Issues Draft Rules for Design Details for Clean Energy Incentive Plan; Tribal Projects are Eligible

On June 30, the EPA issued its proposed rules for the design details of the Clean Energy Incentive Plan (CEIP), a component of the (now stayed) Clean Power Plan (CPP). Comments are due by August 29, 2016. Further information about the CEIP can be found on the EPA Clean Power Plan website and the National …