Monthly Archives: May 2014

When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity

In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v. EPA, in which the Sixth Circuit Court of Appeals ruled that EPA could not consider two facilities as “adjacent” for Title V and NSR permitting purposes unless they are,… More

When Is An Agreement Not To Purchase Electricity a Retail Sale? The DC Circuit Strikes Down FERC Order 745

Last Friday, the D.C. Circuit Court of Appeals struck down FERC Order 745, which required that demand response resources be compensated in the same way as traditional generation resources, at the “locational marginal price”, or LMP. Why is this an environmental case? Because use of demand response at times of peak electricity demand substitutes for traditional generation and thus eliminates the emissions that would result from such generation.… More

The RGGI Annual Report for 2013: Do We Finally Have a Real Market for Allowances?

Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the evidence?

• The share of allowances held by investors as opposed to compliance entities increased from 6% to 24% over the course of 2013.

• The volume of allowance futures trading rose from 2 million in 2012 to 76 million in 2013.… More

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.

What does it do?

• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA).… More

Massachusetts Land Trusts Breath a Collective Sigh of Relief: The SJC Rules That There Is No Requirement to Promote Public Access For Land to Be Tax-Exempt

The Massachusetts Supreme Judicial Court today ruled that land trusts or other charities which own and preserve conservation land may take advantage of a state tax exemption on such land even if they do not affirmatively encourage public access to the land. The land trusts have dodged a potentially major bullet.

The New England Forest Foundation owns a 120-acre forest parcel in Hawley. The Hawley Board of Assessors ruled that the property was not tax-exempt,… More

EPA On Track to Regulate Fine Particulates More Stringently: D.C. Circuit Affirms Revised PM 2.5 NAAQS

EPA’s judicial winning streak continues. Today, the D.C. Circuit Court of Appeals affirmed EPA’s regulations lowering the PM 2.5 National Ambient Air Quality Standard from 15.0 ug/m3 to 12.0 ug/m3. This was not a close case or a difficult decision. Indeed, as we had previously pointed out, the D.C. Circuit had previously rejected EPA’s decision to keep the NAAQS at 15 ug/m3 and EPA’s Clean Air Science Advisory Committee had supported lowering the NAAQS to 12 ug/m3 or 13ug/m3.… More

CERCLA’s Statutory Liability Defenses — How Strict Is CERCLA Liability?

It was no surprise that the Second Circuit in In re September 11 Litigation recently affirmed the lower court’s ruling that contamination caused by the 9/11 attacks was within CERCLA’s “Act of War” defense.  Although CERCLA is often said to impose strict liability regardless of fault, the Second Circuit’s decision indicates that CERCLA’s liability scheme was not intended to reach contamination that was caused entirely by the hostile acts of others:

The attacks wrested from the defendants all control over the planes and the buildings, … More