Last week, the District of Columbia Court of Appeals affirmed vacatur of the easement issued to the Dakota Access Pipeline by the Army Corps of Engineers. As I noted last month in connection with the Biden Executive Order concerning Keystone XL, no one in the industry is rushing out to plan any new pipelines and no one in the financing business is rushing out to provide the cash to build any new pipelines. … More
Category Archives: Infrastructure
Yesterday, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad. It’s even more comprehensive than last week’s order. Indeed, my main reaction to the order isn’t to any of the specific provisions. It’s one simple realization – he really means it. And I think that’s the point. There is no question at this point that President Joseph Robinette Biden,… More
Yesterday, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. There’s a lot in it, so I think I’m going to have to take it in blog-sized bites. Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.
Why start here?… More
Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level. And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.
Two weeks ago,… More
Yesterday, Massachusetts released its “2050 Decarbonization Roadmap.” I’m tempted to call it a tour de force. At the very least, it’s jam-packed with important issues. One of the most valuable aspects of the Roadmap is its discussion of the potential tradeoffs among the different paths towards a decarbonized economy. Acknowledging that the Roadmap contains much more good stuff than can be summarized in a single post,… More
Today, three of the states participating in the Transportation Climate Initiative – Massachusetts, Connecticut, and Rhode Island – and the District of Columbia released a Memorandum of Understanding describing a “cap and invest” program intended to reduce carbon emissions from fossil fuels and raise money “to accelerate the transition to an equitable, safe, and affordable low-carbon transportation sector.” Here are the big takeaways:
- The four participating states are eight short of full participation among the TCI states. …
The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli
Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline. The Court did so with a two-sentence order stating that an opinion would follow. The order was issued hours after oral argument. Why the hurry?
It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”
On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline. It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day. From a legal point of view, however, I wouldn’t take that much comfort from the decision.
The basis for the stay was that the District Court did not make explicit findings on the need for an injunction. … More
CEQ has finalized revisions to the NEPA regulations. I don’t have too much to add to my post on the proposed rule back in January. NEPA needs reform. These regulations, however, are not the reform NEPA needs.
The rule largely tracks the proposed rule. It is worth noting, however, that, contrary to this administration’s frequently cavalier attitude toward judicial review, they have made a few tweaks to increase the likelihood that the rule will survive review. … More
I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States. I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day.
This week, the Massachusetts Attorney General’s office released a white paper documenting the results of a symposium convened last fall to discuss how electric markets should be organized to manage the transition to a “low / no-carbon future.” Policy wonks, such as myself, will find it fascinating reading, though it is moderately dense stuff.
Seriously, it is important to acknowledge that these issues are as complex as they are important. … More
Last week, the 4th Circuit Court of Appeals vacated the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement for the Atlantic Coast Pipeline. It’s the second time that the Court has rejected the FWS approval of the project. I have previously suggested that the Trump administration cares more about providing material for the President’s Twitter feed than advancing its deregulatory or energy dominance agendas. … More
The public-private partnership Louisiana Strategies for Future Environments just released a report so stark in its conclusions that, were it not for all of the maps and figures its contains, one would have assumed that it had to be written in a blue state such as Massachusetts or California, rather than deep red Louisiana. It’s sad that we’ve come to this point, but it does appear that Louisiana at least is taking the fact of climate change seriously. … More
Would the Last Generator to Leave the Wholesale Competitive Energy Market Please Turn Off the Lights?
On Friday, Connecticut announced that it had reached agreement with Dominion, Eversource, and United Illuminating to keep the Millstone nuclear plant operating for 10 more years. Not coincidentally, on the same day, the six New England Governors announced their “Commitment to Regional Cooperation on Energy Issues.” An important element of that commitment is to work with ISO New England:
to evaluate market-based mechanisms that value the contribution that existing nuclear generation resources make to regional energy security and winter reliability.… More
Yesterday, Ed Markey and Alexandria Ocasio-Cortez released a proposed congressional resolution providing a framework for the so-called Green New Deal. I am pleased to note that it would not exclude use of nuclear power or large-scale hydropower. Neither would it preclude use of market-based approaches towards regulating carbon. Of course, it also doesn’t advocate for putting a price on carbon.
I realize that this is simply a resolution and not proposed legislation. … More
A few weeks ago, a coalition of 626 groups sent a letter to Congress, setting forth some principles concerning what should and should not be part of a Green New Deal. Among the policies that apparently should not be part of a Green New Deal are nuclear power, large-scale hydropower and –wait for it – any use of market-based mechanisms. … More
Boston’s Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050. It’s a thoughtful and careful report. My immediate reaction was two-fold. Of course we have to do all this and of course this will be nearly impossible.
The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:
The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More
Two reports crossed my desk this week that, together, made me wonder if we’re finally nearing the tipping point on climate change belief in the United States. First, Yale and George Mason released Climate Change in the American Mind. The report shows that almost 75% of Americans think global warming is happening and more than 50% are very sure that it’s happening. More than 60% of Americans think it’s mostly caused by human activity.… More
On Tuesday, nine Northeastern and Mid-Atlantic states participating in the Transportation Climate Initiative – notably not yet including New York – announced that they:
will design a regional low-carbon transportation policy proposal that would cap and reduce carbon emissions from the combustion of transportation fuels through a cap-and-invest program or other pricing mechanism.
It’s a major development. Electric sector emissions have dropped substantially in recent years and now account for less than half the GHG emissions resulting from transportation. … More
Last week, the Massachusetts Department of Energy Resources released its Comprehensive Energy Plan. It’s a generally solid piece of work, even if it doesn’t say anything hugely surprising. Its various policy recommendations can be summarized fairly easily: electrify and conserve.
Two seemingly unrelated adaptation stories caught my eye last week. The first involved efforts by the California Coastal Commission to provide guidance on “Residential Adaptation” to climate change. The primary reason why the draft guidance is getting so much attention is that the Commission raised the possibility of “managed retreat” in some situations.
I get the point of managed retreat. It seems preferable to repeatedly bowing to political pressure and bailing out coastal property owners who ignore the risks associated with climate change. … More
The National Climate Assessment Projects Major Economic Impacts. The President Doesn’t Believe It. Must Not Be True.
Last week, the government released the Fourth National Climate Assessment. Not surprisingly, it’s largely consistent with the prior assessments. As other commenters have noticed, the primary difference from prior reports is one of emphasis; the Assessment now includes substantial information about the likely cost to the economy if we fail to address climate change.
I had been wondering whether it was worth doing a post about the assessment – and then I saw that the President,… More
Deja Vu All Over Again — The Trump Administration Refuses to Provide “Good Reasons” For Its Change in Course on Keystone XL
Yesterday, Judge Brian Morris granted summary judgment to plaintiffs on some of their claims challenging the State Department’s new Record of Decision for the Keystone XL project. Whatever our Tweeter-in-chief may say, it’s actually a fairly balanced decision, which ruled in the Administration’s favor on a number of issues.
The most noteworthy part of the decision takes the State Department to task for failing to provide “good reasons” for the change in the ROD concerning climate change. … More
I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change. As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.
Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court. However, I’m not sure that this is a victory for the oil companies. This might be more of a “be careful what you wish for” scenario.
President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to reform the way we implement infrastructure projects in the US, but this President is not the one to lead the effort.
Here are some of the problems I see.
As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. … More
Yesterday, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site. The intent of the proposal was to compensate generators who provide reliability and resilience attributes to the grid.
The decision was unanimous, though there were several concurrences. The commissioners were not persuaded that there is a reliability problem that requires immediate,… More
The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report. Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More
Earlier this week, Moody’s Investors Service announced issuance of a report (payment required) warning that:
the effects of climate change, including climbing global temperatures, and rising sea levels, are forecast to have an increasing economic impact on US state and local issuers. This will be a growing negative credit factor for issuers without sufficient adaptation and mitigation strategies.
In other words, if you are an issuer of state or local bonds in an area likely to be impacted by climate trends,… More
On Monday, EnergyWire (subscription required) reported that New York City Mayor Bill de Blasio has unveiled a plan to cap fossil fuel use in buildings in New York City. (I haven’t seen the specific plan, but it is referenced in City’s overall plan, “1.5°C: Aligning New York City with the Paris Climate Agreement,” that the City just released.) The building plan is based on data gathered as a result of local ordinances requiring buildings with more than 25,000 square feet to report energy and water use. … More
Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility. The opinion is both interesting and pleasurably concise – a rare combination!
Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit. Importantly, he also found that CLF stated that there is:
substantial risk”… More
Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast Market Pipelines Project. If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.
(Full disclosure – Foley Hoag represents NextEra,… More
According to Bloomberg BNA (subscription required), last week, for the first time ever, more than 50% of the load in the Electric Reliability Council of Texas service area was supplied by wind power. This is the state that consumes more coal than any other. Installed wind capacity is now more than 18,000 megawatts and is projected to be as high as 28,000 MW by 2020.… More
According to the American Wind Energy Association blog, installed wind capacity in the United States has reached 82,000 MW. That puts it past the 80,000 MW of installed hydropower capacity and makes wind the largest installed renewable energy resource.
While the overall number represents a significant milestone, some of the details are interesting as well. Wind represents 5.5% of US generation. Moreover,… More
In one of the first acts of his presidency, Donald Trump signed an Executive Order entitled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”, with a stated goal of streamlining environmental permitting for infrastructure projects.
The order establishes a process by which the Chairman of the Council on Environmental Quality may be petitioned to designate an infrastructure project as “high priority”. … More
This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems. I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.… More
This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21. MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”
The NPRM addresses this criterion,… More
Yesterday, the White House released a fact sheet describing its efforts to create a “21st Century Clean Transportation System”. There’s a lot of interesting material in the plan, but all the headlines have been on the President’s inclusion of a $10/barrel tax on oil in his FY2017 budget as a means of paying for the various improvements contained in the plan.
The fact sheet doesn’t use the words “carbon tax” and it emphasizes the purposes for which the tax revenue will be used,… More
On December 4, 2015, President Obama 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
Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make developers quiver in their boots, how about this first line?
We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.… More
Governor Baker recently submitted Senate Bill No. 1965 to the Legislature. It calls for utilities to solicit long-term purchases of renewable energy. We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period. Two rationales are often provided to justify the large purchase of Canadian hydropower. First, cheap hydropower will ameliorate the high cost of electricity. Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More
In an important decision last week, United States District Judge Jorge Alonso rejected the Environmental Impact Statement for the Illiana Corridor Project, which would connect I55 in Illinois to I65 in Indiana. (And why Illiana? Why not Indianois?)
The two key criticisms were raised by metropolitan planning organizations (MPOs) in Illinois and Indiana. First, they argued that DOT used a “market-based” population forecast that showed much faster growth in rural areas than the “policy-based” forecast used by the planning agencies. … More
On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and combined with a typical willingness to spend money we didn’t have.
As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first time turned on a light bulb for me. … More
Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require. As with any MEPA (or NEPA) analysis, it has two parts: identification of impacts and discussion of mitigation measures.… More
Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?
Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment. In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy. The policy seems sufficiently important to warrant more than one post. Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy. Tomorrow,… More
Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards
In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP,… More
Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation
As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to highlight the economic costs resulting from gas leaks. Of course, methane is a much more powerful greenhouse gas than CO2, with a global warming potential of 21.… More
On Tuesday, Governor Patrick announced a series of climate change preparedness initiatives, including about $50 million in funds for a variety of programs. Before summarizing the plan, I’ll note that Massachusetts appears to have jettisoned “adaptation” as the descriptor for programs designed to mitigate the effects of climate change. We are no longer “adapting”. Now, like the Boy Scouts, we will be “prepared.” Shrewd call.
The biggest piece of the pie with be $40 million for a municipal “resilience” grant program,… More
Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines
Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.” Instead, we were told to focus on “growing the clean energy economy.” The push to frame the climate debate in economic terms continues. This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines. … More
It was a busy week on the climate change front in Boston. First, RGGI announced a new Model Rule. Under the new Model Rule, summarized here, the 2014 cap would be reduced by 45%, from 165 million tons to 91 million tons. Because such a sharp decrease in allowances will be expected to cause an increase in allowance prices, RGGI has now provided a safety valve,… More
The Massachusetts DPU Approves the Cape Wind NSTAR Contract: Do I Feel Wind At The End Of The Tunnel?
On Monday, the Massachusetts DPU gave an early holiday present to Cape Wind, by approving the power purchase agreement it entered into with NSTAR. When the 27.5% of Cape Wind represented by this PPA is added to the 50% included in the National Grid PPA, it is looking more and more as though Cape Wind will actually make it to the finish line.
As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. … More
E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”
Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee,… More
Here’s a Suprise — A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay
Yesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay.
Pardon me if I seem to be posting a lot of dog bites man stories recently.
Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively,… More
On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that.
Last week, the Geneva Association, which describes itself as “the leading international insurance think tank for strategically important insurance and risk management issues,” issued a report entitled “Extreme events and insurance: 2011 annus horribilis.” Quick take-away? Insurance losses are growing. Why? While there were large earthquakes in 2011, the bigger long-term concerns are extreme weather events and an increasing number of people and resources located in areas subject to such events.… More
Does Energy Efficient Technology Make Buildings More Energy Efficient? The Answer May Not Be So Obvious
ClimateWire had a fascinating story on Monday about federal efforts to increase the energy efficiency of buildings, which are estimated to consume about 40% of our nation’s energy. The story concerns the less than inspiringly-named Greater Philadelphia Innovation Cluster for Energy-Efficient Buildings, which is seeking to substantially alter how building owners think about energy efficiency and the use of technology.
The problem facing GPIC, as it is known,… More
Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?
Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.”
I hope that that’s the way the report will be read,… More
Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week,… More
A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.… More
The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given the (one hopes) temporary problems with the federal loan guarantee program and Cape Wind’s failure thus far to sell the rest of the power from the project,… More
Last night, the United States Senate voted to reject President Obama’s $447 billion jobs plan. Recall that the bill, filed by the President on September 12 and styled the “American Jobs Act of 2011”, includes a mix of tax cuts, extensions of expiring jobless benefits, and new spending on infrastructure – including roads, railways and schools. The bill also includes an expansion of the discretionary TIGER grant programs, and the increasingly popular TIFIA loan program. Big picture, it was designed by the White House as its plan to keep the country out of a recession in the coming year.
As Congress considers approaches to climate change legislation, with pragmatists seeming generally to support a cap and trade system, while purists support a carbon tax, the Commonwealth of Massachusetts has now weighed in with a new approach: How about both?
Although Massachusetts dithered a bit at the end of the Romney administration, it rejoined the Regional Greenhouse Gas Emission under Governor Patrick in time to participate in the first auction under the RGGI cap and trade program. Last week,… More
Massachusetts Takes Steps to Ensure That Stimulus Spending is Not Bogged Down in Environmental Reviews
It looks as though Massachusetts is going to at least try to avoid having lengthy environmental reviews create obstacles to spending its share of the federal stimulus package. A draft report prepared by the Commonwealth’s Permitting Task Force makes several recommendations which, if implemented, would indeed help to ensure that the money can get out the door and the shovels in the ground. Highlights include:
- Allowing projects to proceed,…