Monthly Archives: January 2016

Prognosticating the Ozone Standard Litigation: EPA to Win, Environmental Petitioners to Place, Murray Energy to Show

Earlier this week, the “Public Health and Environmental Petitioners” challenging EPA’s decision not to reduce the ozone Ozone_Molecule_Formulastandard below 0.070 ppm filed their “Non-Binding Statement of Issues.”  My crystal ball still tells me that the most likely outcome is that the Court of Appeals upholds EPA’s 0.070 ppm standard.

I do think that the Public Health and Environmental Petitioners have a better case than Murray Energy (which filed its Statement of Issues late last year). … More

Kamala Harris Puts Exxon Under Her Microscope: California AG Reportedly Has Launched Review of Oil Giant’s Statements On Climate Change

Students of history know that fighting a two front war is a hazard to be avoided. According to the L.A. Times, however, that is precisely the dilemma that now faces Exxon Mobil:  dual investigations from attorneys general on each coast of the United States.

Several sources are reporting that California Attorney General Kamala Harris’ office is examining what Exxon knew about the science of climate change compared with what the company told investors. … More

AIG Bows Out of the Pollution Legal Liability Market

On Tuesday, insurance giant AIG announced a major restructuring designed to make it a “more profitable and focused insurer.” Apparently as a result of these efforts to streamline and slim down, AIG has begun notifying holders of itsAIG Pollution Legal Liability insurance that it will no longer be underwriting new policies.  Existing policies will be honored, but renewal will not be available.  AIG will reportedly continue to write Contractors Pollution Liability and Environmental and General Liability Exposure policies.… More

The FAST Act Seeks to Streamline the Environmental Review of Infrastructure Projects

On December 4, 2015, President Obamaimage006_web signed into law the Fixing America’s Surface Transportation (FAST) Act—a five-year, $305-billion transportation authorization and spending bill. The FAST Act largely focuses on funding highways and other transit infrastructure, but, interestingly, it also contains provisions overhauling the environmental review of infrastructure projects under the National Environmental Policy Act (NEPA).

For example, the FAST Act requires agencies to coordinate their environmental reviews of transportation projects to avoid duplication and accelerate the review process.… More

Good Law Catches Up With Good Policy: The Supreme Court Upholds FERC’s Demand Response Order

The Supreme Court today affirmed FERC’s Order No. 745, which required that demand response resources be treated the same as generation resources when participating in wholesale electricity markets.  I’m feeling vindicated, because the post-oral argument prognosticators said that it looked bad for FERC, but I always thought that FERC had the stronger argument.

As I noted after the D.C. Circuit struck down Order No.… More

Massachusetts Updates Its Climate Song: I Can Get By With A Little Help From My (Canadian) Friends

Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020.  The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”.  The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.

While that’s the main take-away, it really is a useful report,… More

Some Decisions Just Make One Say “Wow!”

Conservatives sometimes talk about lawless, i.e., liberal, judges.  Let me tell you a story about Judge Robert Clive Jones, Robert_C._Jones_District_Judgewho presided over the United States v. Estate of E. Wayne Hage, until the 9th Circuit this week reversed several of his decisions and instructed the Chief Judge to assign the case to a new judge on remand.

Wayne Hage grazed cattle on federal land in Nevada.… More

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose Economy-Wide GHG Controls? Count Me Skeptical

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach.  And what, you may ask, is § 115?  Even the most dedicated “airhead” has probably never worked with it.… More

Courts Must Determine The Economic Benefit Of Noncompliance In Assessing CWA Penalties

It is well-known that the “economic benefit of noncompliance” is one of the factors to be evaluated in setting penalties under the Clean Water Act.  Thus, it is not surprising that, after an oil spill at Citgo’s facility in Lake Charles, Louisiana, LakeCharlesHorizontalthe 5th Circuit Court of Appeals was unhappy when the District Court “did not quantify the economic gain to Citgo, finding it virtually impossible to do so given the evidence.”  The 5th Circuit directed the District Court to “consider its analysis of the [penalty] factors afresh after making a reasonable approximately of economic benefit.”… More