Today the Department of the Interior (Department), announced that it has finalized regulations that it has been working on since 2009, which aim to “protect streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provide mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment” by overhauling 30-year-old regulations. Highlights include:
HMS Legal Blog
The Colonial Pipeline explosion that occurred on Monday, October 31, 2016, was catastrophic, killing one worker and shooting flames 100 feet high. The explosion, which was caused during an effort to fix a line breach also injured four additional workers, and crippled gasoline supplies to the northeast. This explosion on the Colonial Pipeline and the resulting severing of gasoline supply to the northeast caused the Environmental Protection Agency (EPA) to issue a waiver of the federal RFG (reformulated gasoline) requirements as promulgated under the Clean Air Act (CAA).
On June 29, 2016, President Obama, Prime Minister Trudeau, and President Nieto announced the North American Climate, Clean Energy, and Environment Partnership at the North American Leaders Summit. According to President Obama, the “ambitious and enduring” Partnership will see the United States, Canada, and Mexico “work toward the common goal of a North America that is competitive, that encourages clean growth, and that protects our shared environment.”
On February 18, 2016, EPA Announced its Triennial National Enforcement Initiatives (“Initiatives”). The EPA issues these Initiatives once every three years in order to help “focus time and resources on national pollution problems” according to Cynthia Giles, assistant administrator for enforcement and compliance assurance at EPA. The latest round of Initiatives will begin on October 1, 2016 and once again will list natural gas producers and water authorities as targets for EPA inspections and enforcement.
The Commonwealth Court Strikes a Delicate Balance Between Environmental Protection, Economic Development, and Deference to the Legislative Branch.
In Pennsylvania Environmental Defense Foundation v. Com., -- A.3d – (2015), the Commonwealth Court issued a decision that balanced statutory and constitutional environmental protections against economic development and deference to collateral branches of government. Specifically, in a 6-1 decision, the Court held that legislation authorizing revenue contributions to the General Assembly’s annual appropriations fund (“General Fund”) from a fund financed by oil and natural gas leases on public lands (“Lease Fund”) executed between the Department of Conservation and Natural Resources (“DCNR”)and various private parties does not violate Article I, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment”).
On June 2, the EPA released its much anticipated proposed rule mandating a reduction in carbon emissions from existing power plants. The rule requires an overall national decrease in carbon emissions by 30% from existing plants by 2030. The proposed rule instructs states to submit plans to achieve state specific goals for emission reductions. Alternatively, states may collaborate with other states and submit a joint plan. Plans must be submitted by 2017, or 2018 if collaborating with other states.
On January 2, 2014 the Pennsylvania Public Utility Commission and Department of Environmental Protection (“Applicants”) filed an Application for Reargument of Robinson Township,1 in the Pennsylvania Supreme Court, requesting reconsideration of the December 19, 2013 plurality opinion and remand to the Commonwealth Court for an evidentiary hearing and findings of fact. The Applicants argue that the plurality of the Court, in applying its newly coined Environmental Rights Amendment balancing test, adopted novel and unsupported findings of fact, contrary to established Supreme Court principle against taking on a fact finding role in its appellate jurisdiction. Robinson Township, et al., (“Townships”) answer that no disputed facts were necessary to the Court’s balancing test, and in the alternative, judicial estoppel precludes Applicants from requesting an evidentiary hearing because Applicants successfully argued in the Commonwealth Court that the Act’s constitutionality was purely a question of law. Applicants also request remand to have the Commonwealth Court determine whether the unconstitutional set back provisions are severable from the rest of Act 13.
Pennsylvania Supreme Court Held Key Provisions of Act 13 Unconstitutional under the Environmental Rights Amendment (ERA)
The Pennsylvania Supreme Court held key provisions of Act 13 unconstitutional under the Environmental Rights Amendment (ERA) of the Pennsylvania Constitution in a plurality opinion on December 19, 2013. Act 13 was designed to streamline regulation of the oil and gas industry by setting statewide zoning standards and administrative review procedures, which posed significant financial ramifications for non-compliant municipalities. The Court specifically held that the provisions mandating municipal zoning standards, such as permitting industrial oil and gas operations as a use of right in every zoning district throughout the state, are unconstitutional. These provisions were overturned because the legislature has abrogated constitutionally proscribed municipal duties to protect the rights guaranteed by the ERA. The Court also held that provisions of the act imposing a waiver process for mandatory setback from waterways, administered by DEP, also violated the ERA.
On August 21, 2012, the Court of Appeals for the District of Columbia struck down the EPA’s Cross State Air Pollution Rules, also known as the Transport Rules, that governed the emissions reduction responsibility of 28 upwind states – including Pennsylvania -- under the “good neighbor” provisions of the Clean Air Act (“CAA”). EME Homer City Generation L.P. v. EPA, No. 11-1302 (D.D.C. August 21, 2012)(Kavanaugh, J. on the opinion, joined by Judge Griffith). The “good neighbor” provisions of the CAA require that upwind states prevent sources within their borders from emitting pollution that “contributes significantly” to downwind states’ nonattainment of federal air quality standards. The EPA adopted the Transport Rules in August 2011 to define the “good neighbor” obligations for two emissions: sulfur dioxide (SO?) and nitrogen oxide (NO?).
EPA has posted its bio diesel standards for 2012. As part of the EPA’s mandate to march the U.S. toward energy independence, the EPA establishes the minimum bio fuel requirements that manufacturers must meet each year. The new bio standards are out and they equate to an aggressive total renewable fuel volume of 9% of all fuels sold.
TMDLs Established by EPA, Not DEP
On December 29, 2010, EPA issued a first-of-its-kind TMDL for the Chesapeake Bay. The TMDL, which stands for “Total Maximum Daily Load,” establishes a “pollution budget” for Pennsylvania and other states that contribute surface water flows to the Chesapeake Bay. Pennsylvania, in turn, also recently produced a “Watershed Implementation Plan” describing how the Commonwealth intends to allocate the nutrient reductions required to meet the goals of the TMDL.