On Tuesday, October 13, the National Hydropower Association (NHA) announced its partnership with American Rivers, the World Wildlife Fund, and other environmental groups in a “Joint Statement of Collaboration on U.S. Hydropower: Climate Solution and Conservation Challenge.” The Joint Statement, which was facilitated over the last two and a half years through Stanford University’s Uncommon Dialogue process, is a collaborative effort to address climate change by encouraging “the renewable energy and storage benefits of hydropower and the environmental and economic benefits of healthy rivers.”

Liberty to invest in new opportunity

Over the past several years, Environmental, Social and Governance (ESG) initiatives have gained popularity among investors, but have gained less traction in federal law. ESG are a set of criteria that investors use to evaluate the environmental and societal impacts of a business. Some European countries require that companies report their ESG metrics, but ESG reporting in the United States has generally been voluntary. There are some indications that a Biden administration — especially coupled with a democratic congress — may seek to amplify ESG reporting in the U.S. As an early indication of such action, the new administration is expected to view ESG differently than the Trump administration.

The U.S. Environmental Protection Agency (EPA) has announced its decision to retain the current National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) and ozone (O3) under the Clean Air Act. However, the new Biden EPA is all but certain to reevaluate the standards and likely to reach different conclusions.

PM2.5 is a mixture of small liquid or solid particles found in the air that are less than 2.5 micrometers (μm) in aerodynamic diameter. O3 is a reactive gas that is formed through chemical reactions of nitrogen oxides and volatile organic compounds in the atmosphere. Under the CAA, EPA must ensure the ambient standards for both pollutants are established at a level “requisite to protect the public health” with “an adequate margin of safety,” and EPA must review the NAAQS every five years to determine whether the standards should be retained or revised.

On January 11, the Pipeline and Hazardous Materials Safety Administration (PHMSA) finalized its June 2020 proposed rulemaking intended to reduce regulatory burdens and offer greater flexibility to gas pipeline operators, previously discussed in our post here. Pipeline operators may voluntarily comply with the rule starting on the effective date of March 12, 2021, but mandatory compliance is not required until October 1, 2021. Although the rule implements moderate changes to the pipeline safety regulations, given the timing of the final rule’s release, it is at least possible that the new administration could withdraw the rule.

In an opinion filed on December 29, 2020, the First Appellate District in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board upheld a Responsible Agency’s imposition of additional mitigation more than a year after it had issued an initial approval for the project.  Although the court was careful to say that it was addressing “unique circumstances” that would “seldom arise,” the decision is potentially problematic for project proponents, and especially for public agencies trying to pursue necessary public-infrastructure projects.

The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.

Ross Brings Unique Background of Federal, State and Private Sector Experience to Firm, Expanding Environmental and Natural Resources Practice

WASHINGTON (January 11, 2021) – Dave Ross, a longtime public servant who has held key leadership positions in federal and state environmental agencies, has joined Troutman Pepper as a partner in the firm’s Environmental and Natural Resources Practice Group in Washington, D.C. Ross’ policy background, along with a distinctive combination of federal, state and private sector experience, will significantly expand the capabilities of the firm’s 50-attorney national environmental practice, which serves clients in a variety of industries across the United States.

Oil-and-gas-tanks

On Dec. 26, 2020, Mexico’s Ministry of Energy (SENER) published in the Federal Official Gazette (DOF), a resolution that establishes the goods for which import and export activities are subject to regulation by SENER (the Resolution), whereby SENER amends the existing regulation related to such import and export activities and its corresponding permits.

Continue reading…

"Least Tern"

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.

On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.…