Public consultation is currently open for the Western Australian (WA) government’s proposed amendments to the state’s environmental protection legislation. The proposed changes aim to modernise the state’s environmental protection legislation to address the new challenges and priorities that have arisen in environmental protection in the 30 years since the Environmental Protection Act 1986 (WA) (EP Act) was introduced. With Australia currently experiencing perhaps the most catastrophic bushfire season in living memory, and the CSIRO reporting an increase in extreme weather conditions, rising sea levels and a warming of Australia’s climate and oceans by approximately 1°C since 1910, it is important that we consider how our environmental protection legislation can best address these emerging challenges. This coincides with the Commonwealth government conducting its review of the federal Environmental Protection Biodiversity Conservation Act 1999 (Cth) and calling for industry and the community submissions, reflecting that environmental protection legislation reform is of timely importance in Australia.
Louisiana First Circuit Court of Appeal Limits The Application of Late Payment Penalties
In Smith International v. Robinson, No. 10498, (La. App. 1 Cir. January 9, 2020), the Louisiana First Circuit Court of Appeal held that the Louisiana Department of Revenue (the “Department”) may not impose a late payment penalty when a taxpayer has paid the amount reported to be due on its tax return. The Court’s…
CARB Attempts to Contain LCFS Credit Prices
In recent LCFS amendments, CARB introduced a new price cap on all LCFS credit transfers and authorized limited future credit borrowing.
By Joshua T. Bledsoe, Brian F. McCall, and Kevin A. Homrighausen
On November 21, 2019, the California Air Resources Board (CARB) passed Resolution 19-27, approving several amendments to the Low Carbon Fuel Standard (LCFS) program designed to foster stability in the LCFS market and promote access to electric vehicle (EV) transportation for disadvantaged and low-income communities in California.
Concerns of Credit Price Run-up
The LCFS is a key pillar of California’s efforts to reduce greenhouse gas (GHG) emissions in the transportation sector. As discussed in previous posts, regulated entities must either: (1) ensure that fuels supplied in California meet annual, decreasing carbon intensity (CI) targets (e.g., by blending biofuels into gasoline and diesel); or (2) procure and surrender credits to CARB. Regulated entities can buy LCFS credits in the bilateral market or in the Credit Clearance Market (CCM), a CARB-administered market intended to supply cost-controlled credits in the event of a market shortage. The rulemaking appears to reflect CARB’s acknowledgment of long-held concerns in the LCFS market that deficit generation will outstrip credit generation, and the CCM will be unable to adequately cap credit prices. The steady advance of LCFS credit prices since the summer of 2017 is well documented in CARB’s Credit Transfer Activity Reports. The most recent LCFS amendments are intended to ensure that the CCM will continue functioning in the event of a credit shortage and to safeguard against a potential LCFS credit price run-up.
California Holds Technical PFAS Seminar to Inform Public of State of Science and Possible Future Drinking Water Regulations
Last month, the California State Water Resources Control Board (State Board) hosted a comprehensive two-day seminar on per- and polyflouroaklyl substances (PFAS) in California. PFAS are a family of an estimated 4,000-6,300 chemical compounds that have a variety of applications due to their stability in the environment. Although some reports suggest that these chemicals are ubiquitous in the environment, such pervasiveness may be explained by sampling for parts per trillion, in contrast to the parts per billion or million for which most chemicals are sampled.
Presenters at the California PFAS seminar included staff members from the State Board, as well as staff members the Office of Environmental Health Hazard Assessment (OEHHA), and the Department of Toxic Substances (DTSC). All three organizations are sub-agencies of the California Environmental Protection Agency (CalEPA). A representative from California’s Department of Public Health also provided an update on its California Regional Exposure (CARE) PFAS study designed to measure levels of PFAS in people throughout the State. Representatives from the United States EPA (U.S. EPA), and from various members of the scientific, legal, and NGO communities also presented. The conference was widely attended by water supply and waste water treatment providers, technical consultants, NGOs, and lawyers.
Draft Carefully – Recent U.S. Supreme Court Case Serves as Lesson to Properly Preserve Issues on Appeal
The Supreme Court of the United States recently handed down a decision on the statute of limitations period under the Fair Debt Collection Practices Act (the “FDCPA”) to start off its term. The case provides a lesson to practitioners to draft carefully; the failure to do so may result in the loss of the cause…
New York State Public Service Commission Flexes “Just and Reasonable” Muscle to Impose Sweeping Reforms to Energy Marketplace
The New York State Public Service Commission (“Commission”) leveraged an unprecedented interpretation of its “just and reasonable” regulatory authority to impose drastic changes to the retail energy marketplace, which will have ripple effects on Renewable Energy Credit (REC) markets, retail energy contracts, Distributed Energy Resource (DER) providers and other clean technology stakeholders. The Commission’s Order Adopting…
New York State Public Service Commission Modernizes Community Solar Billing Procedures
Since the New York State Public Service Commission (“Commission”) first authorized the Community Distributed Generation (CDG) program in 2015, CDG Sponsors—the entities that organize, own and/or operate CDG projects—have faced an uphill battle in explaining the program, marketing it to customers and streamlining the energy billing process. The confusion arises first and foremost because CDG customers currently receive only bill credits, not renewable electricity or the environmental attributes of that electricity. This is further complicated by the fact that credits are typically denominated on the bill in kilowatt hours and are allocated in a cumbersome manner, whereby the utility first applies credits to a customer’s utility bill, but then the customer separately pays for a portion of those credits at a discounted rate (the “CDG Savings Rate”) to a third party – the CDG Sponsor – through a second bill. In addition to creating market confusion, this two-step process imposes unnecessary customer management and billing costs.
Third Circuit Fills Gap Left by CERCLA
In November, the Third Circuit Court of Appeals affirmed a granting of summary judgment by the District Court for the District of New Jersey. The Court of Appeals determined that the current property owner’s claim for contribution pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was untimely because the statute of limitations for contribution claims begins to accrue when the party seeking contribution administratively settles its liability. That decision, Cranbury Brick Yard, LLC v. United States of America, fills one of the statutory gaps that exists in CERCLA.
The site in the case was a weapons manufacturing facility in Cranbury, New Jersey. During World War II and the Korean War, Unexcelled Manufacturing Co. manufactured bombs, anti-aircraft ammunition, grenade fuses, and other high-powered weapons for the U.S. Military. Following an investigation of the site by the New Jersey Department of Environmental Protection (NJDEP), a directive identified several responsible parties, including the former owner of the site and the U.S. Navy.
New Jersey Legislature Considering Bill to Amend A-901 Applicability
In December 2019, a bill to amend New Jersey’s A-901 licensing program cleared two hurdles in the Assembly on its way to a full floor vote and possible presentment to the Governor. New Jersey Senate Bill 2306 (Assembly Bill 4267), which unanimously cleared the Senate in June, seeks to amend existing law to require background checks for “a broader range of persons” participating in the State’s solid waste industry.
In response to a heavy infiltration of organized crime into the solid-waste transportation industry, the Legislature put into place in 1984 a legal and regulatory framework under which businesses seeking to enter the solid-waste industry as a transporter, facility, or broker must clear several hurdles in order to operate. Among those hurdles is the time-consuming A-901 approval process, which generally requires would-be market participants to submit to criminal background checks, fingerprinting, and annual disclosure statements in order to obtain and maintain a license to operate in the solid-waste industry in New Jersey. Unsurprisingly, there are exceptions to that general rule, most notable of which is that the A-901 approval process does not currently apply to businesses engaged in recycling operations. There are also other limited exceptions to the A-901 approval process, such as for self-generators of solid waste.
Reset 2.0?
Public Service Commission Resets Retail Energy Marketplace:
All ESCOs Required to Re-Register Under New Rules and Completely Revise Product Offerings
On December 12, 2019, the New York State Public Service Commission (“Commission”) voted to reset the retail energy marketplace by requiring all Energy Service Companies (ESCOs) to re-register for eligibility to serve customers. While the final order remains to be issued, the Department of Public Service (DPS) explained that as part of the re-registration process, it will subject each ESCO to new eligibility requirements and require all ESCOs to modify their product offerings to fit one of four categories.