Max Bridges and George Seay to present at the 29th Annual Kentucky Professional Engineers in Mining Seminar

Max Bridges and George Seay, members of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the 29th Annual Kentucky Professional Engineers in Mining Seminar.  They will be speaking on the topic “Environmental Update Including the Stream Protection Rule, and what Constitutes Criminal Behavior Following the Don Blankenship Trial.”

Please click here to access the agenda and registration information.

Supreme Court Rejects Challenge to MATS Rule

By Max E. Bridges

On Monday, the United States Supreme Court rejected an appeal from 20 states seeking to block the MATS rule from taking effect while the EPA undertakes a second determination whether regulating power plant mercury emissions is appropriate and necessary.  As previously discussed on this blog, the MATS rule was promulgated pursuant to Section 112 of the Clean Air Act to limit emissions of mercury and other hazardous air pollutants from coal-  and oil-fired electric utility steam generating units. To regulate hazardous air pollutants from electric utility steam generating units, Section 112 of the Act requires the EPA to evaluate hazards reasonably anticipated to occur from emissions occurring after other Clean Air Act mandates are in place, and determine whether regulating the emissions with a Section 112-based standard is appropriate and necessary. In June 2015, the Supreme Court ruled that the EPA failed to comply with the Clear Air Act when it made its “appropriate and necessary” determination without considering compliance costs. However, the Supreme Court remanded the case to the Continue reading Supreme Court Rejects Challenge to MATS Rule

EPA Issues Final Rule to Cut Methane Emissions from Oil and Gas Industry

By Max E. Bridges

oil rig worker 12612966XLargeOn May 12, the EPA finalized a set of regulations that will reduce methane, volatile organic compounds, and toxic air emissions in the oil and gas industry. The final rule will target emissions from new or modified oil and gas wells. According to the Agency, the rule will prevent 11 million metric tons of carbon dioxide equivalent emissions in 2025. While the new standards will not apply to the vast numbers of existing rigs, well pads, and auxiliary equipment, the EPA indicated that it plans to regulate these sources as well by issuing an information request on the oil and gas industry regarding existing operations. The EPA states that the information received “will provide the foundation for developing regulations to reduce methane emissions from existing oil and gas sources.”

Methane is the second most prevalent greenhouse gas emitted in the United States from human activities. The EPA estimates that Continue reading EPA Issues Final Rule to Cut Methane Emissions from Oil and Gas Industry

Sixth Circuit Retains Jurisdiction over Challenges to Clean Water Rule

By Max E. Bridges

On Monday, the U.S. Court of Appeals for the Sixth Circuit concluded that it has jurisdiction to review challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency (EPA) and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” But there has been intense opposition to the rule and it is now subject to more than 20 separate challenges filed by numerous states and interest groups. A number of these challenges were consolidated in the Sixth Circuit and in October, the Sixth Circuit stayed the rule nationwide, concluding that the challengers demonstrated a “substantial possibility of success.”

In yesterday’s decision, the Sixth Circuit panel concluded that it has jurisdiction to hear the consolidated challenges to the Clean Water Rule under Sixth Circuit precedent and 33 U.S.C. § 1369(b)(1) of the Clean Water Act. Unless the EPA or the Army Corps can obtain a hearing on this jurisdiction question before all of the Judges of the Sixth Circuit and/or it’s reviewed by the U.S. Supreme Court, and in either case, have the decision overturned, the Sixth Circuit will be the first court to decide the validity of the Clean Water Rule.

 

Supreme Court Stays the Clean Power Plan

By Max E. Bridges

Supreme Court 2Yesterday, by a 5-4 vote, the U.S. Supreme Court issued a stay of the Obama Administration’s “Clean Power Plan,” regulations promulgated to limit CO2 emissions from the electric power sector.  A coalition of 27 states is challenging the regulations in the U.S. Court of Appeals for the District of Columbia; this is the first time the Supreme Court has stayed a regulation before the Court of Appeals completed its review.  The Supreme Court’s Order issuing the stay says it will remain in effect until the Court of Appeals has ruled on the coalition’s challenge, and if the coalition subsequently petitions the Supreme Court to consider the regulations, when the Supreme Court has either denied that petition or granted the petition and issued its own decision.  As a result, the regulations likely will not become effective, if ever, before the President leaves office. As previously discussed on this blog, the Clean Power Plan is designed to reduce CO2 emissions from fossil-fueled power plants by 32 percent from 2005 levels by 2030, and each state has individual emission goals.

Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed

By Max E. Bridges

On December 11, the U.S. Supreme Court granted certiorari to determine if a party can appeal a U.S. Army Corps of Engineers’ jurisdictional determination that a water feature is regulated under the Clean Water Act. United States Army Corps of Engineers v. Hawkes Co., Inc. et al., Docket No. 15-290. The Petition was filed by the Army Corps after the Eighth Circuit determined that a jurisdictional determination was final agency action and appealable. The Supreme Court’s decision will resolve a circuit split between the Eight and Fifth Circuits, and the issue is significant because prior to development landowners often obtain the Corps’ opinions as to whether a particular water feature is regulated under the Clean Water Act. If the Corps has jurisdiction, the landowner must obtain a permit (which takes considerable time and resources) or risk substantial enforcement penalties.

The Administrative Procedures Act allows judicial review of “final agency action for which there is no other adequate remedy in a court.” But the Corps has long maintained that its jurisdictional determination is not Continue reading Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed

Max Bridges to present at the Kentucky Chamber’s 14th Annual Environmental Conference

Max Bridges, a member of Wyatt’s Natural Resources & Environmental Service Team, will be presenting at the Kentucky Chamber of Commerce‘s 14th Annual Environmental Conference on February 9-10 in Lexington.  Mr. Bridges will be speaking on the topic “Real Estate and Environmental Issues Selected Statutes and Predevelopment Planning.”  The presentation will focus on issues under the major environmental laws that impact real estate development including issues arising under the Clean Water Act, Endangered Species Act, Comprehensive Environmental Response, Compensation, and Liability (CERCLA), and other federal and state laws.  It will also address pre-development planning and how to avoid liabilities.

To view the full agenda, click here.

To register, click here.

D.C. Circuit Court Issues Order Remanding MATS Rule to EPA Without Vacatur

By Lesly A.R. Davis

On December 15, 2015, the United States Court of Appeals for the District of Columbia Circuit issued an Order that will  leave in place the United States Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards final rule while the agency works to issue final findings as ordered by the United States Supreme  Court.  In  White Stallion Energy Center, LLC, et al. v.  United States Environmental Protection Agency, et al.,  No. 12-1100 (Dec. 15, 2015), the D.C. Circuit directed  that the proceedings be remanded to the EPA without vacatur of the MATS final rule.  The D.C. Circuit  also noted that EPA has represented that it is on track to issue a final finding by April 15, 2016.

The MATS rule has  a very lengthy and controversial history.  On February 16, 2012, the EPA issued national emission standards for hazardous air pollutants (NESHAP) for coal and oil-fired electric generating  units (EGUs),  known as the Mercury and Air Toxics Standards (MATS).   The MATS rule finalized standards to reduce emissions of toxic air pollutants including mercury, arsenic and heavy metals.   EPA proposed to regulate these emissions under Section 112 of the Clean Air Act (CAA).   Industry, states and Continue reading D.C. Circuit Court Issues Order Remanding MATS Rule to EPA Without Vacatur

Sixth Circuit Rejects Clean Air Act Preemption Argument

By Max E. Bridges

gavelIn November, the Sixth Circuit Court of Appeals held that the Clean Air Act (CAA) does not preempt state common law tort claims.  It reached this conclusion in an action by property owners who allege that ethanol emissions from Diageo Americas Supply whiskey aging warehouses harm their property. Merrick v. Diageo Americas Supply, Inc., 14-6198, 2015 WL 6646818 (6th Cir. Nov. 2, 2015).  The plaintiffs, on behalf of a putative class, allege that the ethanol emissions combine with condensation to promote the growth of an unsightly and difficult to remove “whiskey fungus.” They filed a class action lawsuit in federal District Court alleging that under the Kentucky common law of negligence, trespass and nuisance, they are entitled to an injunction mandating that Diageo capture and control the emissions, and recover damages. Diageo sought to have the action dismissed, arguing that plaintiffs’ state law claims are preempted by the CAA because they “conflict with the Clean Air Act methods for regulating emissions and, therefore, that allowing such claims to proceed would frustrate the purposes and objective of the Act.” Id. at *4.  The District Court rejected this defense but certified the question to the Sixth Circuit Court of Appeals.

Writing for the three-judge panel of the Sixth Circuit, Judge Rogers affirmed the District Court’s decision to reject Diageo’s preemption defense: “The Clean Air Act’s text makes clear that the Act does not preempt such claims,” he wrote. Id. at *1. In addressing arguments that a Continue reading Sixth Circuit Rejects Clean Air Act Preemption Argument

Steve Berger, Lesly Davis and Doug McSwain present at “Water Infrastructure Summit”

Steve Berger, Lesly Davis and Doug McSwain, members of the Firm’s Corporate & Securities, Natural Resources & Environmental and Litigation & Dispute Resolution Service Teams, respectively, presented at the first annual Kentucky League of Cities & Kentucky American Water “Water Infrastructure Summit” in Lexington, Kentucky on October 14.  Mr. Berger presented on the topic “Water Infrastructure Financing: WIFIA and P3,” and Ms. Davis and Mr. McSwain spoke on the topic “Legal Issues Related to Water Infrastructure” to a group of approximately 75 participants.