Monthly Archives: August 2010

Fishing, Fowling, Navigation and Wind Energy: SJC Approves Cape Wind Siting Process

The Cape Wind project cleared another important hurdle yesterday with a 4-2 ruling by the Massachusetts Supreme Judicial Court, holding that the state Energy Facilities Siting Board (EFSB) can authorize local construction permits for the project’s transmission lines. The decision in Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Board is particularly significant because it means that the renewable energy project has all of the state and local permits it needs to move forward.… More

There Is a Statute of Limitations For Challenging Permits In Massachusetts (Or, We’re Crazy Here, But Not That Crazy)

Those who operate industrial facilities or do development in Massachusetts often know far more than they would like about Chapter 214, § 7A, the environmental citizens’ suit provision of the Massachusetts General Laws. Chapter 214, § 7A, eliminates plaintiffs’ usual obligation to demonstrate standing and simply gives 10 citizens the right to sue to prevent or eliminate “damage to the environment.” The damage does have to constitute a violation of a statute, regulation,… More

DOE Gives A Good News Cycle for Natural Gas

The US Department of Energy (DOE) announced two items in the last week that, while not related, could both spell large changes in the US energy future and create huge boon to the natural gas industry, if they pan out.

The first is an announcement on Wednesday that the National Energy Technology Laboratory (NETL) has developed a method of freezing natural gas which could both lower the cost of transportation of natural gas and allow access to vast amounts of the world’s gas resources.… More

Sierra Club Suit Alleging Failure To Obtain PSD Permits Dismissed as Untimely

On August 12, in Sierra Club v. Otter Tail Power Co., the Eighth Circuit Court of Appeals dismissed the Sierra Club’s suit related to the Big Stone Generating Station, a coal fired power plant in South Dakota. In doing so, it disagreed with EPA and sided with what appears to be the majority on a question that has produced differing responses amongst the courts – whether the Prevention of Significant Deterioration (“PSD”) program prohibits only the construction or modification of a facility without a PSD permit,… More

What’s Next for Carbon Capture and Storage?

In February, President Obama tasked the Interagency Task Force on Carbon Capture and Storage with the ambitious goal of overcoming the barriers to widespread, cost-effective deployment of carbon capture and storage (CCS) within the next 10 years.  As the first bold step, the 14-agency and executive department group released its findings in a report on August 12.

The report concludes that widespread cost-effective deployment of CCS will only occur if the technology is commercially available (i.e.… More

From Tailoring To “FIPping” – More GHG Action From The EPA

With the abandonment of federal climate change legislation by the Senate last month, EPA’s efforts to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) have taken on even greater importance for the estimated 15,500 emission sources nationwide expected to be affected by the new rules. Yesterday, the U.S. EPA announced a pair of proposed rules to help ensure the implementation of permitting requirements for GHGs,… More

New Developments In The Underground

What do a coal-fired power plant in Meredosia, Illinois and a National Park in Ecuador’s Amazonian jungle have in common? Carbon sequestration — albeit of two very different kinds. Last week, while the U.S. government made a major funding commitment to a project aimed at capturing carbon dioxide emissions from the stack of a coal fired power plant in the Midwest, the government of Ecuador took steps towards preventing the extraction and combustion of fossil fuels in the first place by signing an agreement that would keep a significant chunk of its oil reserves locked underground.… More

Sometimes Guidance Is Better Than Regulation: Massachusetts Issues “Safe Development” Guidance For Engineered Nanoparticles

The BNA reported today that the Massachusetts Office of Technical Assistance and Technology has developed a guidance document identifying considerations for the safe development of engineered nanoparticles, or ENPs. As many of my readers know, I am deeply suspicious of regulatory agency guidance documents. Guidance is often used as a short-cut so that the agency can avoid notice and comment rule-making. Moreover, it’s generally one-sided;… More

EPA’s NSR Enforcement Initiative Marches On

EPA shows no signs of slowing down in its efforts to use the Clean Air Act’s PSD/NSR provisions as an enforcement club. The latest target in EPA’s crosshairs is the Detroit Edison Monroe Power Plant. Late last month, DOJ filed a complaint alleging violations of PSD/NSR requirements in connection with a project to replace the high temperature reheater and the economizer at Monroe Unit 2. … More

Massachusetts Legislature End of Session Scorecard: One Good, One Bad

As the Massachusetts legislative session wound down, there was the usual last-minute scramble – heightened, this time, by the Legislature’s focus on casino gambling. Notwithstanding the preoccupation with gambling, the Legislature did manage to enact the Permit Extension Act, which developers have been pushing for some time. Briefly, permits in effect at any time between August 15, 2008 and August 15, 2010, will be extended for two years. To read more,… More

The SJC Really Means It: Only the Legislature Can Give Up the Public’s Ownership Interest in Tidelands

As many of you know, the Commonwealth’s tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the “waters ebbeth and floweth.”  Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like.

The short version is that the Commonwealth holds the fee interest in “Commonwealth Tidelands” – those below the low water line. … More

Inching Closer to Cooling Water Intake Structure Regulation of Existing Facilities

Late July saw some movement on the cooling water intake structure (CWIS) front.

On Friday, July 23, in ConocoPhillips, et al. v. EPA, the Fifth Circuit granted EPA’s motion for a voluntary remand of the existing-facilities portion of its Phase III regulation. The Phase III rule, promulgated in 2006, addressed CWIS at existing small power plants and other facilities in certain industries, including the pulp and paper,… More